University of Chicago Legal Forum
Volume 2015 Does Election Law Serve the Electorate?
Article 18
2016
A Twenty-Sixth Amendment Challenge to State
Voter ID Laws
Caitlin Foley
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A Twenty-Sixth Amendment Challenge to
State Voter ID Laws
CaitlinFoleyt
INTRODUCTION
On June 30, 1971, the requisite number of states ratified
the Twenty-Sixth Amendment to the U.S. Constitution. The
latest to join the Constitution's short list of amendments giving
fundamental rights to U.S. citizens, the Twenty-Sixth
Amendment granted eighteen to twenty-one year olds the right
to vote in state and federal elections.' Enacted in reaction to
state opposition of national legislation that would have achieved
this goal, Congress enacted the Amendment to definitively
extend the right to vote in state and federal elections to youth. 2
Changes in perception of youth in society, a decades-long debate
over soldiers dying for a country in which they. could not vote,
and incentives gained by contributions from their incorporation
into political life all moved this far-reaching action. 3
Despite a drastic alteration to the U.S. electorate, apart
from a spattering of litigation involving residency restrictions in
state courts, the Amendment has been largely unused. This may
be explained by various factors: a dearth of rights denied or
abridged, or the conception of the Amendment as a "sword" for
B.A. 2010, University of Pennsylvania; J.D. Candidate 2016, The University of
Chicago Law School. I would like to thank Professors William Baude and Aziz Huq for
their valuable contribution in helping me think about this topic in a different and more
interesting light.
' The Amendment arose from its statutory precursor, Title III of the Voting Rights
Act of 1970. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, tit. III, 84
Stat. 314, 318-19 (1970-71) (lowering the voting age from twenty-one to eighteen for all
state and federal elections), invalidated in part by Oregon v. Mitchell, 400 U.S. 112
(1970); Title III attempted to lower the national voting age from twenty-one to eighteen,
partially surviving challenges in Oregon v. Mitchell 400 U.S. 112 (1970) where the Court
invalidated its extension of the vote as applied to state and local elections.
2 See S.J. Res. 7, 92d Cong., 1st Sess. (1971). See also infra Part II.B.
3 See id.
585
586
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[ 2015
enfranchisement but not a "shield" to defend against subtle
abridgements that do not deny political participation outright.
As a result of this, when laws are enacted that target youth the
question arises of how to apply the Amendment and who to
apply it to. Only a portion of eighteen to twenty-one year olds
have had their voting rights denied in a manner that implicates
the Amendment's protections. When this targeted class changes
in composition over time, so do the limits of their protection
under the Twenty-Sixth Amendment.4 To warrant application,
then, a showing of target-by-proxy may be necessary. For
instance a state's action may target students through college
identification as proxies for age, or restrict felons' constitutional
rights as proxies for targeting specific racial groups. Even
further-and relevant to the population of United States' college
students-is their demographic distribution. It is harder to
discern the constitutionality of a law that targets college
students because of their race as a result of predicted indications
that race can be used as a voting preference.
This Comment explores a current instance where such an
abridgement, but not an outright ban, has risen-state voter ID
laws that limit or prohibit the use of student IDs. It identifies
the effect such state laws have on youth voting and whether a
potential youth class could use the Twenty-Sixth Amendment to
invalidate such a law. This Comment then argues that the
Twenty-Sixth Amendment offers a viable challenge to state
voter ID laws attempting to limit or deny youth voting rights
when age and race are intertwined and intentionally targeted.
Part I provides an overview of the enactment of the TwentySixth Amendment, using the text and legislative history to
support the contention that it was intended to operate as a
sword to enforce and as a shield to protect youth voting rights.
Part II examines state control over the electoral process and
litigation that limits and defines that control. Part III examines
and defines existing Equal Protection challenges that courts
could apply in a Twenty-Sixth Amendment claim against state
voter ID laws. Finally, Part IV argues that based on the
character of state voter ID laws that disparately impact
minority youth voters, such legislation should be assessed under
4 In illustration, a law that abridges the voting rights of college-aged students
because of educational membership or its associative quality with a political party
presumably is not protected.
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
587
the Village of Arlington Heights v. Metropolitan Housing
Development Corporation5 standard of review.
I.
A.
THE TWENTY-SIXTH AMENDMENT
The Text of the Amendment
Section 1. The right of citizens of the United States, who
are 18 years of age or older, to vote shall not be denied or
abridged by the United States or any state on account of
age.
Section. 2. The Congress shall have power to enforce this
article by appropriate legislation. 6
Before analyzing whether the Amendment can be used
against a state voter ID law that impermissibly abridges the
youth vote, it is necessary to determine if the Amendment can
be used outside a context of enfranchisement. The text of the
Twenty-Sixth Amendment's enactment supports a view that it
was intended to function both as a sword7 and a shield.8 This
role is evident when comparing the text with amendments
enacted with similar or identical language. 9 The authors of the
Twenty-Sixth Amendment modeled its text, particularly § 1,
after the Fifteenth and Nineteenth Amendments.1 0 The
5 429 U.S. 252 (1977) (concerning a city council's zoning measure restricting the
construction of multi-family dwellings, challenged as racially discriminatory and
motivated).
6 U.S. CONST. amend. XXVI (emphasis added).
See, e.g., Kelly Sarabyn, The Twenty-Sixth Amendment: Resolving the Federal
Circuit Split over College Students' First Amendment Rights, 14 TEX. J. ON C.L. & C.R.
27, 30 (2008) (arguing that the Twenty-Sixth Amendment provided university students
with full-fledged citizenship, protecting even their First Amendment free speech rights).
" See, e.g., Eric S. Fish, The Twenty-Sixth Amendment Enforcement Power, Note,
121 YALE L.J. 1168, 1173 (2012) (stating the Twenty-Sixth Amendment should be
"interpreted to protect voters of all ages from age discrimination, not merely the young.
It should also be interpreted to permit Congress to enact legislation overriding state
policies that abridge voting rights on the basis of age"). Voting legislation, such as the
Voting Rights Act of 1965, is often described as serving two roles: an offensive "sword" to
actively identify violations of law, and a defense-oriented "shield" to protect a party from
challenges concerning their compliance with it. For instance, the Voting Rights Act
serves as a shield by protecting jurisdictions that adhere to its provisions against
challenge, and a sword by empowering prosecution of violators. See, e.g., Kareem U.
Crayton, Sword, Shield & Compass: The Uses and Misuses of Racially Polarized Voting
Studies in Voting Rights Enforcement, 64 RUTGERS L. REV. 973 (2012).
9 See Fish, supra note 8.
'o See id. at 1175 (quoting 117 CONG. REC. 7534 (1971) (statement of Rep. Richard
588
[ 2015
THE UNIVERSITY OF CHICAGO LEGAL FORUM
inclusion of "or abridged" speaks strongly to the intended "broad
enforcement power" of the Amendment." "Abridged" in
amendments such as the Fifteenth enabled Congress to enact §5
of the Voting Rights Act, which invalidated racially motivated
suppression of the vote. 12
The language of §2 is duplicative of other amendments with
broad enforcement powers. The phrase "Congress shall have
power to enforce" appears in six of twenty-five amendments that
have "either been construed to give Congress far-reaching
enforcement powers or is consistent with such a construction."13
The debates leading up to the Amendment's passage show
Congress's intent to replicate the enforcement power of
this language.14
The Amendment's text is significant considering judicial
interpretation of the Fifteenth and Nineteenth Amendments
beyond mere enfranchisement of their respective enumerated
and protected classes. Courts have broadened both amendments'
applicability past their initially designated beneficiaries to
include other diverse classes and men alike. 15 Prior to the
Twenty-Sixth Amendment's construction, Congress utilized
enforcement provisions to invalidate state laws that implicated
rights conferred by the Reconstruction-era Amendments,
contributing to the idea that the provision's text intentionally
included a broad enforcement power by Congress. 16
Poff) ("[Tihe proposed constitutional amendment ... guarantees that citizens who are 18
years of age or older shall not be discriminated against on account of age. Just as the
15th amendment prohibits racial discrimination in voting and just as the 19th
amendment prohibits sex discrimination in voting, the proposed amendment would
prohibit age discrimination in voting.")). See also, SEN. BIRCH BAYH, S. COMM. ON
THE JUDICIARY, LOWERING
THE VOTING AGE
To 18, S. REP. No. 92-26,
at
2
(1971)
[hereinafter S. COMM ON THE JUDICIARY REPORT] (stating that Section 1 of the TwentySixth Amendment "embodies the language and formulation of the 19th amendment,
which enfranchised women, and that of the 15th amendment, which forbade racial
discrimination at the polls").
" See Fish, supra note 8, at 1181.
12 See id.
13 Id. at 1182 (quotations
omitted).
14 S. COMM ON THE JUDICIARY REPORT at 2. As the Committee
on the Judiciary
noted, §2 "confers on Congress the power to enforce the Article by appropriate
legislation" because the section "parallels the reserve power granted to the Congress by
numerous amendments to the Constitution." Id.
"s See Fish, supra note 8, at 1176.
16 Id. at 1176-80.
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
589
Legislative History of the Amendment
B.
of the Twenty-Sixth Amendment
The enactment
encapsulated the concern over incorporating eighteen to twentyone year olds into the political process, a concern that initially
surfaced amidst World War 1I, and continued until its passage.1 7
Over 150 similar amendments were proposed before 1970, but
none were adopted until a confluence of factors prompted a new
look at the composition of the country's electorate. The Senate
Judiciary Committee Report noted these factors: maturity,1 8 the
ability to mentally and emotionally contribute to democratic
government,19 performance of civic responsibilities in roles as
taxpayers and servicemen, 20 and the social contribution of
active participation."
The legislative history of the Amendment reveals
Congressional concern over potential state restrictions on the
youth vote. The Senate Judiciary Committee Report preceding
the Amendment's adoption gave wholehearted support for the
extension of the right to vote while minimizing the perceived
administrative burden it would create for states. 22 It noted:
"forcing young voters to undertake special burdens-obtaining
absentee ballots, or traveling to one centralized location in each
city, for example-in order to exercise their right to vote might
well serve to dissuade them from participating in the election."2 3
The Report emphasized the inconsistent nature of such election
procedures against the purpose of the Voting Rights Act-to
promote political participation among youth by eliminating
barriers to their involvement. 24
17 See H.J. RES. 352, 77th Cong., 2d sess., at 8312 (1942). The proposal to lower the
voting age accompanied a proposal to lower the minimum draft age to eighteen.
1s
S. COMM. ON THE JUDICIARY REPORT at 5 (quoting Vice President Agnow as
stating that "young people today are better educated and they mature physically much
sooner than they did even 50 years ago").
19 Id. at 6 (noting that "more than half of the 18- to 21- year-olds are receiving some
type of higher education . . . . It is interesting to compare these recent statistics with
some from 1920, when less than 10 percent went on to college").
20 Id.at6.
21 id.
22
Id. at 12-18.
23
S. COMM. ON THE JUDICIARY REPORT at 14.
24
Id. "This result," the Report continues, consists of "such segregation [which]
might even amount to a denial of their 14th Amendment right to equal protection of the
laws in the exercise of the franchise." Id.
590
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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Interpretation by the Court
C.
The Supreme Court has encountered few cases concerning
the enforcement power of the Twenty-Sixth Amendment, simply
affirming the only case of its kind without discussion of its
reach. 25 In Symm v. United States,26 a case similar to lower court
cases involving residency restrictions, 27 the Court affirmed a
district court's holding that the county's action-requiring
students to fill out a questionnaire denoting post-graduation
residency to register to vote-violated the Twenty-Sixth
Amendment. 28 According to the district court, states may not
treat students differently than other voters, consistent with the
state's action of erecting hurdles that abridged their
voting rights. 29
This does not mean the Court has not paid attention to the
Amendment. In several cases concerning election law, the Court
in dicta has discussed the Twenty-Sixth Amendment as a part of
a federal power to enforce equality in voting.3 0 As discussed
below, lower courts have initiated all the remaining interactions
25
See Symm v. United States, 439 U.S. 1105 (1979).
26
Id.
See, e.g., Ballas v. Symm, 351 F. Supp. 876 (S.D. Tex. 1972) (challenging the
constitutionality of residency questionnaires for students who sought to register to vote).
See also infra Part II.A.
28 Symm, 439 U.S. at
1105.
29
See United States v. State of Tex., 445 F. Supp. 1245, 1259-60 (S.D. Tex. 1978)
aff'd sub nom., Symm v. United States, 439 U.S. 1105 (1979). The Court noted that
states must accept college dormitories as acceptable residencies for voting purposes.
so Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2636 n.2 (2013) ("The implication is
unmistakable: Under our constitutional structure, Congress holds the lead rein in
making the right to vote equally real for all U.S. citizens. These Amendments are in line
with the special role assigned to Congress in protecting the integrity of the democratic
process in federal elections.") (citing U.S. CONST. art. I, § 4 ("[Tjhe Congress may at any
time by Law make or alter" regulations concerning the "Times, Places and Manner of
holding Elections for Senators and Representatives."); Arizona v. Inter Tribal Council of
Ariz., Inc., 133 S. Ct. 2247 (2013)); Lubin v. Panish, 415 U.S. 709, 713 (1974) ("In sharp
contrast to this fear of an unduly lengthy ballot is an increasing pressure for broader
access to the ballot. Thus, while progressive thought in the first half of the century was
concerned with restricting the ballot to achieve voting rationality, recent decades
brought an enlarged demand for an expansion of political opportunity. The Twenty-fifth
Amendment, the Twenty-sixth Amendment, and the Voting Rights Act of 1965, 79 Stat.
437, 42 U.S.C. § 1973 et seq., reflect this shift in emphasis.") (emphasis added); Arizona
v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2263 (2013) ("Congress has no
role in setting voter qualifications, or determining whether they are satisfied, aside from
the powers conferred by the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and
Twenty-Sixth Amendments, which are not at issue here. This power is instead expressly
reposed in the States.").
27
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
591
with the Amendment that signal its broadened application to
youth voting rights.
II.
A.
STATE CONTROL OVER THE ELECTORATE
State Residency Restrictions
Alongside the Twenty-Sixth Amendment's enfranchisement
of eighteen to twenty-one year olds are permissible state
regulations on the qualifications of their electorate.3 1 Congress,
in keeping with the bifurcation of electoral control, can limit
state power by "mak[ing] or alter[ing] such Regulations, except
as to the Places of choosing Senators," 32 and "enforc[ing] by
appropriate legislation" voting rights enumerated in the
Constitution itself.33 Subject to such "appropriate legislation,"
states' restrictions on voting are generally valid as necessary
regulations on the logistical aspects of the electoral process.
Residency is one such state limitation, an undefined
category in either the Constitution or in federal law. 34 As such,
states retain significant discretionary authority over enacting
statutes that define and limit who may vote and when. For
example, in Dyer v. Huff,3 5 the court held that the Twenty-Sixth
Amendment's enfranchisement of eighteen to twenty-one year
olds does not necessarily grant them a guarantee to vote
wherever they wish. 36 States may create legislation to safeguard
3' U.S. CONST. art. I § 4.1. The Constitution provides a division of electoral control
between the federal government and the states, prescribing to states the right to
promulgate the "Time, Places and Manner of holding Elections for Senators and
Representatives," and modeling the election of federal Congressmen so that "the Electors
in each State shall have the qualifications requisite for Electors of the most numerous
Branch of the State Legislature."
32 U.S. CONST. art. I § 4.
3 See, e.g., U.S. CONST. amend. XIV, §5; amend. XV, §2.
34 Most states define residency as (1) the location where a person has, or has had,
physical presence, and (2) where there is an intent to remain. See Voting Residency
Guidelines, FEDERAL VOTING ASSISTANCE PROGRAM, available at http://www.fvap.gov/
infollaws/voting-residency-guidelines, archived at http://perma.cc/D7TG-ZTBP. See also
Sarah Fearon-Maradey, DisenfranchisingAmerica's Youth: How Current Voting Laws
Are Contrary to the Intent of the Twenty-Sixth Amendment, 12 U. N.H. L. REV. 289, 298
(2014) (citations in original).
as 382 F. Supp. 1313 (D.S.C. 1973).
36 Id. at 1316 ("The Twenty-Sixth Amendment to the Constitution of the United
States . . . do[es] not allow a citizen to vote anywhere he desires.").
592
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[2015
their voter rolls, guaranteeing that "bona fide residents" are in
the state or municipality in which they intend to vote. 37
In ensuring only "bona fide" residents are able to vote,
states may enact restrictions that impact out-of-state college
students attending school in a particular locality; for example,
requiring students to sign statements of intent to remain in the
locality after their graduation to qualify as residents.3 8 States
may also apply a presumption against changing domicile, which
designates students' parents' homes as such unless they
affirmatively establish a new one. 39 Yet permissible restrictions
are not without limits. It is unconstitutional for a state to
institute a presumption against entire groups when determining
residency, specifically students and servicemen. 40 Students also
have a constitutional right to travel across state lines and
thereby register to vote in the place they consider "home." 41
See Fearon-Maradey, supra note 34, at 298.
See John M. Greabe, A Federal Baseline For the Right to Vote, 112 COLUM. L.
REV. SIDEBAR 62, 64-65 (2012) ("Alabama, Delaware, Florida, Georgia, Indiana,
Louisiana, Massachusetts, Minnesota, Mississippi, Rhode Island, Utah, Vermont, and
Wisconsin have laws that, if strictly enforced, would withhold domiciliary status from
college students ... with a present intent to move in the future."). See also Joseph A.
Bollhofer, Disenfranchisement of the College Student Vote: When a Resident is not a
Resident, Comment, 11:3 FORDHAM URB. L.J. 489, 489-92 (1983) (discussing the need for
education among election officials and students to rectify the struggle between states'
rights to establish residency requirements and students rights to equal protection of the
law).
3 To do so, students must assert their intention to remain at their school's locality
indefinitely through the required process of their state. In North Carolina, students can
establish residency at their school address as long as they intend to remain there at the
time in question and make it their principal home. N.C. GEN. STAT. § 163-57(11) (2006).
Even an intention to leave after graduation does not invalidate residency, as long as a
student does not hold a present intent to return to their former home. See Lloyd v. Babb,
251 S.E.2d 843 (N.C. 1979). Challenges to a student's residency status cannot be based
on their status as students or out-of-state tuition status. See, e.g., N.C. GEN. STAT. § 16387 (listing the acceptable challenges to a person voting in North Carolina's election). In
Texas a student has a right to establish residency in the state according to a present
intent to remain there for the time being. According to the Texas Attorney General, the
"intention of the voter registration applicant is crucial to a proper determination of
residence, and every person is strongly presumed to have 'the right and privilege of
fixing his residence according to his own desires."' Residency Requirements for Voting in
an Election in Texas, Op. Att'y Gen. GA-0141, at 5 (Tex. 2004) (citing McBeth v. Streib,
96 S.W.2d 992, 995 (Tex. Civ. App.-San Antonio 1936)).
40 See Carrington v. Rash, 380 U.S. 89, 96 (1965) (stating that by "forbidding a
soldier ever to controvert the presumption of nonresidence, the Texas Constitution
imposes an invidious discrimination in violation of the Fourteenth Amendment").
41 See Dunn v. Blumstein, 405 U.S. 330, 338 (1972)
("(F)reedom to travel
throughout the United States has long been recognized as a basic right under the
Constitution ... [a]nd it is clear that the freedom to travel includes the freedom to enter
and abide in any State in the Union.") (internal citation omitted).
37
3
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
593
Uncertainty over the validity of state regulations arises
when those barred from voting or inconvenienced by the
restrictions have their constitutional rights infringed. State
restrictions that employ durational residency requirements 42 for
example are commonly subject to constitutional challenge. The
ability of each state to make ad hoc determinations of whether
residency is met creates considerable opportunities for variance
in voting ability across the nation. This flexibility grants states
the opportunity to craft legislation that discourages students
from voting, or simply results in their exclusion through local
time and place regulations without any intent to "fence out"
the population. 43
1. Twenty-Sixth Amendment challenges to residency
restrictions.
The Supreme Court established precedent concerning
students and residency, defining permissible voting restrictions
a state can place on out-of-state students without offering an
analysis of the Twenty-Sixth Amendment. The lower courts, in
contrast, provided protections for youth voting rights in a
substantial number of cases involving residency and the
Amendment that resulted in limitations on state control over
portions of student voting rights.
In Jolicoeur v. Mihaly,44 the California Supreme Court
considered the state's proposed legislation that presumed
residency according to youths' parental homes. The court found
"[r]espondent's refusal to treat petitioners as adults for voting
purposes violat[ed] the letter and spirit of the Twenty-Sixth
Amendment." 45 Other state supreme courts have echoed this
reasoning. In Worden v. Mercer County Board of Elections,46 the
See, e.g., Whatley v. Clark, 482 F.2d 1230, 1231 (5th Cir. 1973) (striking down a
state statute that required students to state an intention to reside in the college town
after graduating).
43 See, e.g., Walgren v. Bd. of Selectmen of Town of Amherst, Mass., 373 F. Supp.
624 (D. Mass. 1974) aff'd sub nom., Walgren v. Bd. of Selectmen of Town of Amherst, 519
F.2d 1364 (1st Cir. 1975) (holding a student's Twenty-Sixth Amendment claim without
factual support to sustain an allegation of concrete harms suffered by eighteen to
twenty-one year olds following the town's acceptance of an election calendar that
disadvantaged students as a class).
44 488 P.2d 1 (CA 1971).
45 Id. at 7.
4
294 A.2d 233 (NJ 1972).
42
594
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[2015
court looked to the legislative history of the Twenty-Sixth
Amendment to find it "clearly evidences the purpose not only of
extending the voting right to younger voters but also of
encouraging their participation by elimination of all unnecessary
burdens and barriers."47 The court applied the compelling state
interest test to evaluate its constitutionality, finding restrictions
against students registering and voting in their college
communities could not be validly infringed unless a compelling
state interest so justified. 48
2. Equal protection challenges to residency restrictions.
In addition to employing the Twenty-Sixth Amendment in
the name of student voting rights, courts have upheld the use of
the Equal Protection Clause to advance students' newly granted
right to vote. 49 The question of whether age discrimination
constitutes an acceptable challenge under the Fourteenth
Amendment is controversial,50
yet some courts have
characterized state or county attempts to limit youth voting as
unjustifiable violations of the Fourteenth Amendment. In Sloane
v. Smith, 1 the court found a county's use of both a separate form
and a requirement of more stringent proof of residency for
voting-age students violated the Equal Protection Clause. 52
Students invoked the Fourteenth Amendment in several other
successful suits upon the Amendment's ratification,5 3 with the
4
4
Id. at 237 (emphasis added).
Id. at 244.
4 See U.S. CONST. amend. XIV, § 1. ("No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States.").
50 Age is not conventionally treated as a suspect classification under the Equal
Protection Clause. This is evident in the various age-based categorizations enforced
throughout the states, such as restricting the right to use alcohol to those over twentyone years of age. This may be the reason that the opportunity to challenge voter ID laws
that disproportionately affect voters of a particular age, such as students, has not been
explored by particular affected classes. See, e.g., Nina A. Kohn, Rethinking the
Constitutionality of Age Discrimination:A Challenge to a Decades-Old Consensus, 44
U.C. DAVIS L. REV., 213, 215 (2010).
5' 351 F. Supp. 1299 (M.D.Pa 1972).
52 Id. at 1299.
The requirements for students included production of "a
Pennsylvania driver's license containing a county address or two or more credit cards
showing charge account with a county commercial establishment, checking or savings
account with a county bank or savings and loan association, lease, passport or other
similar indicia of business or commercial activity within county."
53 See, e.g., Whatley v. Clark, 482 F.2d 1230, 1231 (5th Cir. 1973) (striking down a
state statute that required students to state their intention to be residents of the college
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
595
Supreme Court ruling on aspects of these age-based
discrimination policies in Dunn v. Blumstein.54 In Dunn, the
Court eliminated durational residency requirements that last
longer than a few months, recognizing the independent rights of
students to be treated in an equivalent manner as adults in the
same locality.55
The Equal Protection Clause has served as the primary
sword to enforce youth voting rights, and the Twenty-Sixth
Amendment did not supplant it in later claims. Yet the
Fourteenth Amendment's role in protecting youth from voting
abridgment is limited as "youth" is not a protected class capable
of receiving its full security. Its use in residency controversies
and in determining the standards of review applied by the
courts does offer a useful analogue for a Twenty-Sixth
Amendment challenge, an Amendment that could offer broader
protections for youth. As Section B explores, some state voter ID
laws pose a significant and effective means to limit the youth
vote and offer a potential platform to view a Twenty-Sixth
Amendment challenge.
B.
State Voter ID Laws
State legislation abridging youth voting rights takes
creative forms, materializing in targeted laws that seek to
restrict how college-aged students vote through the placement of
polling places, division of a college campus into multiple
legislative districts, or the alteration of residency eligibility
requirements in a campus's locality. 56 A further addition is voter
ID laws, currently enacted in thirty-four states," which require
town they resided after graduating); Wilkens v. Bentley, 189 N.W.2d 423, 434 (Mich.
1971) (striking down a state statute that prohibited students from serving as electors).
14
405 U.S. 330 (1972).
55
See id, at 345-49.
See generally Fish, supra note 8. Fish discusses how the legislative history and
text of the Amendment evinces a Reconstruction-era motivation to empower Congress to
actively police age-based voting rights. For an interesting discussion of the legislative
history, social context, and originalist interpretation of the Amendment, Fish's article
discusses how the Amendment should be read to empower Congress to override state
actions that intentionally burden the right to vote on the basis of age, or
disproportionately burden the voting rights of a particular age group.
5 As of Mar. 25, 2015, thirty-two were in force. See Wendy Underhill, Voter
'6
Identification Requirements, NT'L CONFERENCE OF STATE LEGISLATURES (June 25, 2014),
available
at
http://www.ncsl.org/researchlelections-and-campaigns/voter-id.aspx,
archived at http: //perma.ccl8FBM-K5TP.
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THE UNIVERSITY OF CHICAGO LEGAL FORUM
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voters to present identification at a polling place 8-an act that
can disproportionately affect the youth voting bloc. These laws,
which are not all alike in content or constitutionality, generally
aim to regulate the manner of elections. They thus require
voters to show ID at the polling place for goals such as reducing
voter fraud, increasing legitimacy in the electoral process, and
making sure "when you show up to vote, you are who you say
you are."59 As such, not every law is enacted with intent to
suppress voting, nor does every state voter ID result in reduced
voter turnout. Recently, however, courts in three separate states
struck down or challenged the implementation of such laws
intended to deflate or resulting in reduced voter turnout.6 0
Legislation in two states in particular, North Carolina and
Texas, presents a practical look at what arguments can be
raised against state legislation crafted to or resulting in a
burden on youth voting rights.
1.
North Carolina's voter ID law.
In 2013, the North Carolina Legislature enacted H.R. 589.61
This statute, which will go into effect in 2016, requires voters to
present one of six types of photo identification when they arrive
at the polls: a North Carolina driver license, a North Carolina
special ID card, a U.S. passport, a U.S. military ID card, a
Veterans ID card, or a tribal enrollment card. 62 Universityissued photo ID cards are not permitted, a change from
previous law.
In North CarolinaState Conference of NAACP v. McCrory,63
a group of college-aged students intervened as plaintiffs to bring
a novel Twenty-Sixth Amendment challenge to H.R. 589.64 They
challenged its elimination
of Same Day Registration,
preregistration of sixteen and seventeen year old voters, and the
8 Id.
Texas House Journal, 2011 Reg. Sess. No. 38 (statement of Rep. Harless).
6 Id. (citing the recent decisions in Pennsylvania, Wisconsin, and current
legislation in North Carolina).
61 H.R. 589, 2013-381 (N.C. 2013).
62 See Underhill, supra note 57. Those without state driver's licenses may use their
IDs if they registered within 90 days of the election at issue.
63 997 F. Supp. 2d 322 (M.D.N.C. 2014) (challenging H.B. 589, Session Law 2013381).
' Id. at 334.
5
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
597
elimination of student IDs as acceptable
forms of
65
identification. The court denied a motion for a preliminary
injunction on the basis that the ten intervening plaintiffs failed
to provide sufficient evidence that they would suffer irreparable
harm before trial. The court did not rule on the merits of the
Twenty-Sixth Amendment challenge.66 The case is notable for its
proposal for the court to adopt the Arlington Heights 67
framework to their claim, a standard argued below as the
appropriate one for courts to assess a Twenty-Sixth
Amendment challenge.
2. Texas's voter ID law.
In contrast to the challenge against North Carolina's law,
which relied on the use of the Twenty-Sixth Amendment, the
challenge against Texas S.B. 14, Texas' voter ID law,68 relied on
the Fourteenth. The plaintiffs in the case Veasey v. Perry69
argued the State used age or student status as a proxy to deny
or abridge their right to vote. 70 In Veasey, the Texas League of
Young Voters joined a minority student voter in a suit against
the State for its exclusion of student IDs as acceptable proof of
state identification. The group asserted that S.B. 14 violated
Section 2 of the VRA and the First, Fourteenth, Fifteenth, and
Twenty-First Amendments.7 1 The complaint also alleged a
See id.
See id. Instead the Fourth Circuit affirmed in part and reversed in part,
remanding the case with instructions to enter a preliminary injunction for the claims
concerning the elimination of same-day registration and the prohibition on counting outof-precinct ballots. The Fourth Circuit affirmed the denial of injunctive relief and the
Supreme Court stayed this mandate and denied a petition for a writ of certiorari. See
League of Women Voters of N.C. North Carolina, 769 F.3d 224 (4th Cir. 2014) cert.
denied, (U.S. Apr. 6, 2015).
6
429 U.S. 252 (1977) (concerning a city council's zoning measure restricting the
construction of multi-family dwellings, challenged as racially discriminatory and
motivated).
68 See S.B. 14 § 20 (providing that voters without an acceptable form of ID can
obtain an election identification certificate (EIC), issued by the Department of Public
Safety, under the law; however, the transportation and documentation costs of obtaining
the EIC are arguably prohibitive to many potential voters). Licenses for concealed
handguns are one of several forms of ID permitted.
6
71 F. Supp. 3d 627 (S.D. Tex. 2014).
'0 Id. at 632-33.
n1 See Veasey v. Perry, 29 F. Supp. 3d 896, 896-87 (S.D. Tex. 2014).
6
6
598
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disproportionate impact on Black students in Texas, where 25
percent of young voters lack government-issued IDs. 72
The district court in Veasey agreed with the plaintiffs,
deeming S.B. 14 an unconstitutional burden on both minority
and youth voters, identifiers notably correlated in the court's
14
process. 73 The court found S.B.
decision-making
disproportionately impacted the voting rights of AfricanAmericans and Hispanics in the state 74 noting, "[wlhen the
legislature rejected student IDs, state government employee
IDs, and federal IDs, they rejected IDs that are
disproportionately held by African-Americans and Hispanics."7 5
To arrive at this decision, the court applied the AndersonBurdick standard to the subgroup of Texas voters who did not
already possess an acceptable form of ID under the newly
enacted law. The court considered the burden imposed on these
voters as substantial, noting the time, travel, and cost involved
in obtaining a valid ID, 76 and ruled that S.B. 14 violated the
VRA and the Fourteenth and Fifteenth Amendments.7 7 The
court did not issue a final judgment.78 The Fifth Circuit,
however, upheld the court's finding that the Texas law was
passed with discriminatory intent, had a disproportionate
impact on Hispanic and Black voters, and interacted with
historical conditions to further disadvantage the minority
community's equality in the electoral system. 79
The connection between racial status and age is notable in the effects that result
from student voter ID restrictions. See infra Part IV.
7
Veasey, 71 F. Supp. 3d at 652-53.
7 The district court noted in determining the presence of discriminatory intent in
the legislative history that the "decision to bar the use of government employee and
college and university photo IDs to vote while allowing concealed handgun permits made
the voting requirements much more restrictive for African-Americans and Hispanics
while making it less so for Anglos." Id. at 701.
7 Id. at 658-59.
76 See id. at 693.
72
Veasey, 71 F. Supp. 3d at 699.
The Fifth Circuit stayed the district court's decision to enjoin enforcement of the
law, citing the timing of the decision just days before the election date. See id. The
Supreme Court denied the application to vacate the Circuit's stay. See id. Justice
Ginsberg issued a fervent six-page dissent.
7 Veasey v. Abbott, 796 F.3d 487, 487-88 (5th Cir. 2015) (affirming the district
court's finding of discriminatory effect in violation of § 2 of the VRA, and remanding for
consideration of remedy and determination of whether discriminatory intent could be
found). The court vacated the plaintiffs' First and Fourteenth Amendment challenges.
"
7
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
599
III. TRANSLATING EQUAL PROTECTION ANALYSIS TO THE
TWENTY-SIXTH AMENDMENT
the
Twenty-Sixth
the proposition that
Accepting
Amendment provides broad enforcement power to protect voting
rights for eighteen to twenty-one year olds, the question becomes
what standard of review courts can translate from analogous
constitutional doctrines to assess whether voter ID laws
withstand its constitutional scrutiny. In making this
determination it is necessary to consider the implications of
voter ID laws, which impact fundamental rights,8 0 state election
regulation,8 1 intentional discrimination, 82 disparate impact,8 3
and age-based discrimination, as each offers a range of
constitutional and statutory challenges and their respective
standards of review. What this Comment proposes below is
adoption of the Arlington Heights test advanced by the plaintiff
class in NAACP v. McCrory's challenge to North Carolina's voter
ID law. The analysis under Arlington Heights offers an
appropriate framework for analyzing discriminatory intent
when a state action results in a subtle but disproportionate
effect on subgroups of a particular class. Before discussing why
Arlington Heights presents the most appropriate analogue,
however, the Comment briefly offers why other standards
applied in traditional voting discrimination claims fall short.
State election laws, which require and delineate acceptable
forms of voting ID, are often questioned in legal disputes that
challenge racial discrimination or race-associated impact.
Consequentially, most challenges are brought under the
Fourteenth, Fifteenth, and First Amendments, as well as under
the statutory protections of the VRA. 84 This section describes the
80 If the right to vote is considered a fundamental one.
s' States have a legitimate and recognized role in controlling the manner and
process of their elections, even when its election laws place incidental or indirect burdens
on voting. See Burdick v. Takushi, 504 U.S. 428, 441 (1992) (holding that "the right to
vote is the right to participate in an electoral process that is necessarily structured to
maintain the integrity of the democratic system").
82 See, e.g., Washington v. Davis, 426 U.S. 229, 240-41 (1976) (noting under an
Equal Protection claim intentional discrimination is necessary for application of strict
scrutiny).
83 See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 26667 (1977) (describing the "sensitive inquiry" a court must make into the "circumstantial
and direct evidence of intent as may be available" from instances of government action,
but absent explicit discriminatory purpose).
84 42 U.S.C. § 1973 et seq. Apart from constitutional claims, persons challenging
600
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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constitutional challenges and assesses the appropriateness of
applying a similar standard of review to a Twenty-Sixth
Amendment claim.
A.
Challenges under the Fifteenth Amendment
The Fifteenth Amendment protects the right to vote from
racially motivated abridgment.8 5 The Amendment is a
substantive correlative of the Fourteenth Amendment's
procedural protections; both defend the voting rights of racial
groups from unequal treatment yet the Fifteenth Amendment
enfranchises former subjects of slavery as opposed to ferreting
out and regulating against instances of discrimination, as the
Fourteenth Amendment does. 86 Adoption of a Fifteenth
Amendment analysis for a Twenty-Sixth Amendment claim is in
many ways natural; Congress modeled the Twenty-Sixth
Amendment after the Fifteenth, signaling a belief that they
state voter ID laws can utilize the VRA, passed by Congress pursuant to its authority
under the Fourteenth and Fifteenth Amendments. Section 2 proscribes a state from
enacting any voting scheme that "results in a denial or abridgment of the right of any
citizen ...
to vote on account of race or color." 42 U.S.C. § 1973(a). "The essence of a
[Section] 2 claim is that a certain electoral law, practice, or structure interacts with
social and historical conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives." League of Women Voters
of N.C. v. North Carolina, 796 F.3d 224, 238-39 (4th Cir. 2014) (internal quotations
omitted) (quoting Thornburg v. Gingles, 478 U.S. 30, 30 (1986)). Traditionally a bulwark
of voting rights protection, § 2 challenges to voter ID laws were feared inadequate after
the Supreme Court invalidated the VRA's § 5 preclearance requirement in Shelby County
v. Holder, no longer requiring States with patterns of voting discrimination to submit
changes in their voting legislation to the federal government for preapproval. See Shelby
Cnty., Ala. v. Holder, 133 S. Ct. 2612 (2013). See also Ari Berman, Supreme Court
Eviscerates Voting Rights Act in a Texas Voter-ID Decision, THE NATION (Oct. 20, 2014),
available at http://www. thenation.com/blog/183561/supreme-court-eviscerates-voting-rig
hts-act-texas-voter-id-decision#, archived at http://perma.cc/3EEG-H7NG. Following this
change, voter ID laws such as Texas' S.B. 14 proliferated, leaving §2 to fight against
state voter ID laws alone, with little success, as three out of four cases before the
Supreme Court in October 2014 challenging state voter ID laws under the VRA's
remaining provisions failed. See id. Notably, the Fifth Circuit invalidated Texas' voter ID
law, S.B. 14, under the VRA's § 2, with the court finding that it discriminated against
Black and Hispanic voters. Veasey, 796 F.3d at 487-88.
85 U.S. CONST. amend. XV. See also Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960)
(holding that Congress is empowered to enforce the right to vote against State efforts to
restrict it on account of color or race).
" See Henry L. Chambers, Jr., Colorblindness, Race Neutrality, and Voting Rights,
51 EMORY L.J. 1397, 1398 (2002) (proposing that the Fifteenth Amendment can be used
to invalidate colorblind electoral rules that unintentionally abridge the voting powers of
minority groups).
585]
A TWENTY-SIXTHAMENDMENT CHALLENGE
601
would be interpreted and enforced in a similar manner.
Precedent also exists to guide its application in court.8 7
Yet there are two persuasive arguments against treating
the Twenty-Sixth Amendment as an analogue to the Fifteenth.8 8
First, burdens on the voting rights of students arguably create
restrictions on voting as a commonality of an individual's
association with a school rather than age, presenting an issue of
equal protection and not age discrimination. The Twenty-Sixth
Amendment enfranchised eighteen to twenty-one year olds, but
college students as a class includes graduate students and other
individuals over twenty-one. Granting special protections to one
subgroup of students means "only the fortuitous accident of
birth supports any difference in treatment." 89 If so, an equal
protection analysis that highlights the unequal treatment of
school populations among the broader community would be more
appropriate than a broader Fifteenth Amendment claim.
The First Circuit proposed an application of a Fifteenth Amendment inquiry to a
Twenty-Sixth Amendment claim in Walgren v. Howes, 482 F.2d 95 (1st Cir. 1973),
remanding the analysis to the district court. In Walgren u. Board of Selectmen of Town of
Amherst, Mass., 373 F. Supp. 624, 625 (D. Mass. 1974) aff'd sub nom. Walgren v. Bd. of
Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975), the district court
considered an Equal Protection and Twenty-Sixth Amendment claim challenging the
town of Amherst's decision to adopt a calendar that held elections during university
87
break, when most students were absent. In evaluating the government's action under
the Twenty-Sixth Amendment, the court adopted an analysis akin to the Fifteenth
Amendment, but grudgingly so. Walgren, 373 F. Supp. at 632 (differentiating burdens
from mere obstructions by the degree of difficulty imposed on a potential voter on the
opportunity to vote, finding a burden on student voting did not exist as students were
not "deprived of the opportunity to visit personally the polls ... were not required to vote
by absentee ballot ... [and] could have remained on campus" and participated).The court
emphasized the distinctions underlying the Twenty-Sixth Amendment and the
Reconstruction-era Thirteenth, Fourteenth, and Fifteenth Amendments, noting the
"differences between obstructing access to the political process and the placing of
burdens on the exercise of voting rights." See id. at 634. Though the Twenty-Sixth
Amendment claim in Walgren failed under a Fifteenth Amendment analysis analogue as
a result of the plaintiff's inability to factually support a concrete burden on eighteen to
twenty-one years' voting rights, the court recognized that the government action in
question did not involve suspicion of invalid motives. The officials charged with changing
the election date attempted to rectify the burden on students and, when they could not
alter it for the year in question, adopted a calendar for the subsequent year that
considered the students' presence in the town. Walgren, 373 F. Supp. at 636. As
discussed below, invalid motives in state action could alter the success of youth-directed
discrimination claims challenging voter ID laws.
88 These arguments apply equally to the Thirteenth and Fourteenth Amendments.
The Thirteenth is not discussed here, but courts have interpreted the Fourteenth
Amendment's powers as protecting a range of various classes and identifications distinct
from the class of people it was enacted to protect.
8 Walgren, 373 F. Supp. at 633.
602
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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The second argument posits that the nature of evil
addressed
under
the
Twenty-Sixth
Amendment
is
fundamentally different than that of the Reconstruction-era
Amendments, particularly the Fifteenth. The empowerment of
African-American men contained in an extension of equal
protection and voting privileges involved an inherent
constitutional right denied because of racial discrimination; the
Twenty-Sixth Amendment's enfranchisement of youth in
comparison involved important but less fundamental values.9 0
B.
Three Equal Protection Standards of Analysis
In general, when states enact legislation that intentionally
discriminates against a minority class, or has an unequal or
disparate effect, such statutes and regulations are subject to
constitutional challenge. The most common form of challenge
brought against election laws is under another Reconstructionera act-the Fourteenth Amendment. The standards applied in
those cases, many of which involve the unequal treatment of
students in a residency context, provide the most relevant
comparison to what standards may be used in a similar claim of
age-based discrimination under the Twenty-Sixth Amendment.
In an equal protection challenge, the level of scrutiny the court
90 The importance of the historical implications of either Amendment is also an
important consideration. The court in Walgren noted: "the extension of the ballot to
young people does not have a historical background such as slavery, nor does it rectify a
wrong which was as inconsistent with our constitutional scheme as the total denial of
the vote of an otherwise qualified citizen on account of his race of poverty." Walgren, 373
F. Supp. at 634. The court, however, offered a paternalistic interpretation of the TwentySixth Amendment's adoption, attributing it to "an official acknowledgement of the new
maturity, sophistication and responsibility of the T.V. generation," without mention of
the era of wartime that surrounded its introduction and passage. Id. It is also significant
that in the shadow of voter ID claims based on racially motivated discrimination are
claims of age-based discrimination. The allegation of age-motivated bias in the
enactment of voting laws is a novel one in voter ID challenges. In addition to allegations
that these laws infringe on a class of similarly aged individuals empowered with the
right to vote, a correlation also exists between age and minority classes in many of these
states. Discrete minority classes compose a large component of the youth block in many
states that seek to restrict the "youth vote." See Evan Walker-Wells, Blocking the Youth
Vote in the South, INSTITUTE FOR SOUTHERN STUDIES (Oct. 29, 2014), available at
http://www.southernstudies.org/2014/1O/blocking-the-youth-vote-in-the-south.html,
archived at http://perma.cc/S6KK-5JRA (noting that young people of color are
disproportionately targeted by enforcement of voter ID laws). This presents a compelling
question of what, if any, laws can be used to combat state voter ID laws that infringe
youth voting rights, whether through legislation that protects minority voting rights or
more generally college-aged students.
A TWENTY- SIXTH AMENDMENT CHALLENGE
585]
603
applies to a matter depends on the nature of the law and its
effect, if any, on a protected class.
Applicable to state voter ID laws, the Supreme Court
determined that the Equal Protection Clause applies to a
neutral law91 when a state categorizes voters in disparate
manners, or restricts the right to vote. 92 However, for those raceneutral state actions that disproportionately affect a minority
party, the burden of proving a particular law is invalid depends
on proving a discriminatory intent, a high bar that often results
in a victory for the defendant state. 93 The appropriate standard
to use depends on the "precise character of the state's action and
the nature of the burden on voters."94
In Obama for America v. Husted,95 the Sixth Circuit
separated the standards of review applicable to equal protection
cases in an election law setting. 96 When a plaintiff alleges
unequal treatment but no associated burden on voting, a
rational basis standard is applied.9 7 If a plaintiff alleges a severe
burden, as with a poll tax, courts apply strict scrutiny.9 8 The
Court emphasized that most cases fall in between these
classifications, for example when the allegation is one of
disparate treatment without a finding of discriminatory intent.
In these cases, courts apply the Anderson-Burdick standard in
which a court weighs the harm done to the constitutional rights
of the affected parties against the justifications of particular
interests provided by the State. 99
How the Twenty-Sixth Amendment would apply, and if it
would be more effective, is important in assessing whether the
9' Neutral denotes that the state action in question is not discriminatory on its face,
but may have been enacted with discriminatory intent or have disparate effects.
92 See Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (citing Bush v.
Gore, 531 U.S. 98, 104-05, 121 (2000)).
9 West's ALR Digest Constitutional Law k3251, ALRDG 92K3251.
94 Obama, 697 F.3d at 428.
9 697 F.3d 423 (6th Cir. 2012).
96 Id. at 428-29.
17 Id. at 429.
98
Id.
9 Obama, 697 F.3d at 429. See also Crawford, 553 U.S. at 190. The Court
determined that in evaluating voting rights under the Equal Protection Clause, "rather
than apply[ ] a 'litmus test' that would neatly separate valid from invalid restrictions"
courts "must identify and evaluate the interests put forward by the State as
justifications for the burden imposed by its rule, and then make the 'hard judgment' that
our adversary system demands." Id.
604
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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Amendment can provide the full potential of protections it was
enacted to give. The claim of age-based discrimination involves
disparate treatment and a discriminatory effect, and arguably
warrants a standard above rational basis review. This section
briefly explores the remaining options that a court would most
likely apply: strict scrutiny, the Anderson-Burdick balancing
test, and a novel use of Arlington Heights. The latter Arlington
Heights test, which offers a predictable analysis to a claim of
disparate impact from an official governmental action, provides
a Twenty-Sixth Amendment claim the most suitable framework
for a comprehensive analysis of individual state voter ID laws
that impact youth voting rights.
1. Anderson-Burdick standard: less than "severe."
If the court finds a state action does not have the necessary
characterizations 0 0 to warrant strict scrutiny review, such as
when a state action indirectly or derivatively imposes a burden
on the right to vote, the court applies a lesser standard. Strict
scrutiny is applied when laws erect "a condition" on voting
rights, while intermediate standards of review are applied when
10 The Anderson-Burdick
state action erects mere "barriers."o
standard is one such intermediate standard 0 2 with a judicial
track record in voting rights claims that signals potential
applicability in a voter ID case.1 03
1oo See infra Part III.C.2 (discussing characterizations such as fundamental right,
suspect class, and/or colorblind or color-conscious legislation).
101 Bullock v. Carter, 405 U.S. 134, 143-44 (1972). The Court distinguished between
conditions on the right to vote that trigger strict scrutiny, such as if a voter had to pay a
tax to register, and barriers in the voting system, such as the requirement that
candidates wishing to appear on the ballot pay a filing fee. The latter case does not
involve direct burdens on voters but "tends to deny some voters the opportunity to vote
for a candidate of their choosing." Id. at 144.
102 See Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524 (6th
Cir. 2014)
(finding the provided statistical and testimonial evidence as a finding of a substantial
burden on plaintiffs' right to vote, rather than a severe burden).
103 Anderson v. Celebrezze, 460 U.S. 780 (1983), concerned an Ohio
statute that
established an early filing deadline for independent candidates to place their name on
the ballot. The Court dismissed the notion that Ohio's action denied the franchise of
voting to citizens, but recognized the law had a "theoretical, correlative effect" on voters.
Id. Burdick v. Takushi, 504 U.S. 428 (1992) concerned a Hawaii election law that banned
write-in voting and consequently burdened the number of candidates who could be on
the ballot. The Court, citing Anderson as "[tihe appropriate standard for evaluating a
claim that a state law burdens the right to vote," found a limited burden on voter's rights
as a group. This, the Court determined, required less than a compelling state interest to
survive constitutional scrutiny.
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
605
The Anderson-Burdick standard assesses constitutionality
by employing a balancing test that weighs the state's
justifications for a law against the burden on the right to vote. 104
When a law purports to restrict a constitutional right, the
court weighs:
The character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate"
against "the precise interests put forward by the State as
justifications for the burden imposed by its rule," taking
into consideration "the extent to which those interests
make it necessary to burden the plaintiff's rights."1 05
The restriction survives if the State shows "important regulatory
interests . . . justify the restriction[ ]."106
The first consideration by a court applying the standard is
the burden imposed, if any, on students as a result of state voter
ID laws. As "evenhanded restrictions that protect the integrity
and reliability of the electoral process itself" are not generally
considered offensive, 0 7 courts have not considered any state
burden-voter ID or otherwise-substantial enough to warrant
invalidation under this standard. In the Twenty-Sixth
Amendment context, the burden would be the associated costs
for students to obtain a state-approved ID, such as time or
money expended as a consequence of the law's new
requirements. The legitimacy of such a burden may depend on
whether previous state law allowed student IDs for registration,
and thus if the state created a burden by subsequently
disallowing them. In Crawford v. Marion County Election Board,
Burdick, 504 U.S. at 434.
105 Id. (quoting Anderson, 460 U.S. at 789).
'06 Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at 788). In Burdick the Court
noted since the burden on voters was slight, the interest of the state need not be
compelling. The state's "interest in 'avoid[ing] the possibility of unrestrained
factionalism at the general election' provides adequate justification for its ban on writein voting in November." Id. at 439 (quoting Munro v. Socialist Workers Party, 479 U. S.
189, 196 (1986)).
107
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189-90 (2008) (quoting
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 788, n. 9 (1966)). The Court in
Crawford noted that such "even handed restrictions" satisfy the standard set forth in
Harper, a case in which the Court invalidated a poll tax levied by Virginia on its voters,
thus establishing a standard by which a state action could be classified as "invidiously
discriminate." Id. at 189-90.
104
606
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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the Court opted to apply the Anderson-Burdick standard in
place of a heightened standard and upheld the use of Indiana's
voter ID law.108 In Crawford, the plaintiffs brought an equal
protection challenge in response to Indiana's voter ID law.
Under the analysis, the Court balanced the interests of the State
against the burden imposed on all of the state's voters, discrete
classes of voters, and political parties, 109 and found the interest
of preventing voter fraud sufficiently weighty to justify the
State's action. 110 This was especially true, the court argued, in
light of the fact that Indiana provided free photo IDs for its
residents as well as an alternative option for voters unable to
acquire one by the time of voting.1 1 1
The second consideration for the court under AndersonBurdick is whether the state's justification outweighs the
burden on the voter class. The state must "articulate specific,
rather than abstract state interests, and explain why the
particular
restriction
imposed .
.
.
actually
addresses,
the
interest put forth." 112 In the context of voter ID laws, this finding
varies considerably. In Husted, for example, the Sixth Circuit
found the general goal of preventing voting fraud insufficient to
outweigh the burden on voters.11 3 The state's testimony on
preventing fraud, and "handful of examples of voter fraud" did
not specifically support early voting restrictions the state sought
to protect.1 14 Yet in Crawford, the Court advanced a different
determination, finding the interests of detecting and deterring
voter fraud, improving the electoral process, and increasing
Crawford, 553 U.S. 181.
Id. at 189-90 (explaining that under Anderson v. Celebrezze,
460 U.S. 780 (1983),
a court "must identify and evaluate the interests put forward by the State as
justifications for the burden imposed by its rule").
n0 Id. at 198 (finding that "the inconvenience of making a trip to the BMV [Bureau
of Motor Vehicles], gathering the required documents, and posing for a photograph
surely does not qualify as a substantial burden on the right to vote [or] even represent a
significant increase over the usual burdens of voting.").
n1 Id. at 199 (noting that a provisional ballot would allow voters who did not have
acceptable forms of ID to vote, as long as within 10 days of casting their ballot they
traveled to the circuit court's office and executed an affidavit verifying their identity).
Though the Court noted burdens would prove substantial on those voters without IDs,
born out of state, or those who would have economic or personal impediments to securing
the documents needed to acquire a new ID, the state's provision of a free state ID and
the option of using a provisional ballot mitigated that burden.
n12 Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 545 (6th Cir. 2014).
113
Id. at 547.
114
Id.
108
109
585]1
A TWENTY-SIXTH AMENDMENT CHALLENGE
607
voter confidence as legitimate and sufficiently weighty
interests.1 15 Without evidence of actual in-person voter fraud,
the interest of assuring an accurate voter roll substantiated the
state's voter ID law. 116
Applied to a Twenty-Sixth Amendment claim following
Crawford, plaintiffs will need to offer evidence of an actual
burden on their right to vote,1 17 such as the number of African
Americans negatively affected by a change in early voting.118
Plaintiffs may prove the additional time and expense devoted to
acquiring an accepted form of ID as a burden, which itself will
depend on the availability of free or subsidized IDs in the
respective state. Testimonial or empirical evidence may
overcome Crawford's challenges in this respect, though the factspecific nature of balancing means particular state laws and
their construction will vary in their success of withstanding
Anderson-Burdick scrutiny.
Aside from establishing a burden, a plaintiff will also have
to prove that the government regulation is not based on a
necessary need to reduce voter fraud. Crawford shows that the
interest of insuring voter integrity can be protected from
constitutional challenge, potentially with little support of actual
infringement. 119 Yet the Sixth Circuit's decision in Husted,
coming six years in Crawford's wake, suggests in some circuits
u
Crawford, 553 U.S. at 202-03.
Id. at 195-96 (finding that there is no question of the legitimacy of the State's
interest in assuring only eligible voters votes are considered, even in the absence of any
detectable fraud).
See, e.g., id. at 181.
1
11s
See Chuck Krebs, What is a "Burden"on Voters? Reflections on Ohio's Early
Voting Litigation, KENTUCKYLAWJOURNAL.ORG (Sept. 28, 2014), available at
http: lwww.kentuckylawjournal.org/what-is-a-burden-on-voters-reflections-on-ohios-earl
y-voting-litigation/, archived at http://perma.cclSSQ2-V6XD (describing the uncertainty
in determining a baseline for "burdens" imposed on voters when applying the AndersonBurdick standard).
119 See, e.g., Crawford, 553 U.S. at 195-97. In Crawford, the Court considered three
interests advanced by the government: deterring and detecting voter fraud, modernizing
its election system, and safeguarding voter confidence. Id. at 191-92. The "record
contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its
history," and the evidence advanced to show Indiana had an "inflated list of registered
voters," including deceased and ineligible felons, was attributed to changes in federal law
and "sloppy record keeping" by the state. Id. at 194-95. Nevertheless, the Court found
that "the fact of inflated voter rolls does provide a neutral and nondiscriminatory reason
supporting the State's decision to require photo identification." Id. at 196-97. The
interest of safeguarding voter confidence was likewise held significant because "it
encourages citizen participation in the democratic process." Id. The Court cited no
evidence to support either claim outside of conclusory statements.
116
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there may be a burden on the government to provide proof of
actual fraud. 120 Additionally, the weight given to claims that
such laws protect against voter fraud has waned in recent years
in the face of mounting skepticism of their efficacy.1 21
The Anderson-Burdick standard is in many ways a natural
fit for a court to consider in assessing a student voter ID claim
under the Twenty-Sixth Amendment. The application offers
benefits in translation for the court, as the test is applied
frequently and recently in cases concerning voter ID laws under
Fourteenth Amendment claims 122 where the interest in assuring
election
integrity
often
overcomes
claims
of
unconstitutionality. 1 2 3 The test ensures that reasonable
restrictions on the right to vote, as expected and deemed valid
by the courts, 124 will be weighed in consideration with burdens
that may be unequally imposed on different segments of society,
such as the youth. In this respect, the balancing test is
appropriate, requiring no suspect class or fundamental right (as
strict scrutiny does, discussed below) but allowing discrete
segments of society to advance their arguments against stateOhio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 542 (6th Cir.
2014).
The Court evaluated the state's claim of voter fraud, denying that the state met its
burden to establish that their interest outweighed the burden on voters. The Court
stated: "This does not mean . . . that the State can, by merely asserting an interest in
preventing voter fraud, establish that that interest outweighs a significant burden on
voters. Defendants did not provide more than a handful of actual examples of voter
fraud, and their general testimony regarding the difficulties of verifying voter
registration before counting ballots did not clearly pertain to problems with Golden
Week" (the term used to describe the former state policy that allowed early voting
without proof of inability to vote on election day). Id. at 547
121
See, e.g., Phillip Bump, The disconnect between voter ID laws
and voter fraud,
WASHINGTON POST (Oct. 13, 2014), available at http://www.washingtonpost.com/
blogs/the-fix/wp/2014/10/13/the-disconnect-between-voter-id-laws-and-voter-fraud/,
archived at http://perma.cc/QA2Q-G932 (noting the absence of statistical evidence of inperson voter fraud and state voter ID laws' failure to include the more pernicious
absentee ballots in such legislation).
122
See, e.g., Husted, 768 F.3d at 542 (finding that precise predictions of how many
voters are affected by changes in early voting are not needed in determining that the
state's election law change would disproportionately affect minority, low-income, and
homeless voters).
123 See, e.g., Crawford, 553 U.S. 181. See also Joshua Douglas, (Mis)Trusting
States
to Run Elections, 92 WASH. U. L. REV. 553 (2015) (arguing that the Court has replaced
Congress in election law, partly through lowering the bar to meet the state interest
prong in constitutional analysis).
124 Crawford v. Marion Cnty. Election Bd., 472 F.3d
949, 954 (7th Cir. 2007) ("[fIt is
beyond question that States may, and inevitably must, enact reasonable regulations of
parties, elections, and ballots to reduce election- and campaign-related disorder.")
(internal quotations omitted).
120
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
609
enacted burdens on their voting rights. It also offers a higher
level of scrutiny than the rational basis test traditionally applied
to age discrimination claims. 125
Yet application of the Anderson-Burdick standard is not
necessarily the best fit, particularly due to the indeterminate
guidance courts have given that has resulted in an uneven
application of the test. Cases applying Anderson-Burdick to
voter ID challenges result in a balancing test analyzed either
with incomplete evidence of interests and burdens or conclusory
determinations of either (or both) by the court. Its manner of
application is unpredictable, and complicates the notice of
required pleadings for plaintiffs who argue under it. Even
further, the elements characteristic of a Twenty-Sixth
Amendment claim-the presence of a discrete class of voters and
historical deprivation of a protected right-offer benefits of
translation for the courts and parties that suggest a heightened
standard of review, preferable to the plaintiff class, is a more
appropriate analysis.
2. Strict scrutiny: fundamental rights and suspect class.
In an Equal Protection analysis, strict scrutiny applies
when a legislative classification "impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar
disadvantage of a suspect class."1 2 6 The standard, which is
applied in contexts from due process cases 127 to restrictions on
content-based speech, 128 serves to "smoke out" impermissible
government classifications based on race. 129 It is applied
See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976).
Id. at 312 (finding that a mandatory retirement age involved neither an
interference with fundamental rights or disadvantage to a suspect class) (citing San
Antonio School District v. Rodriguez, 411 U.S. 1, 16 (1973)). The Court found that the
Equal Protection analysis requires strict scrutiny review only when a legislative
classification "impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect class." A mandatory retirement age
involved neither. Id.
127
See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Reno v. Flores,
507 U.S. 292, 301-02 (1993).
128
See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.,
502 U.S. 105, 118 (1991); Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
129 See
Julia Kobick, Discriminatory Intent Reconsidered: Folk Concepts of
Intentionality and Equal Protection Jurisprudence, 45 HARV. C.R.-C.L. L. REV. 517, 522
(2010).
125
126
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whether discrimination is found on the face of the statute,1 30 or
where the state action is facially neutral but applied or enacted
with discriminatory intent. 131 It is also decisive; courts
consistently invalidate discriminatory state actions when
applying strict scrutiny.132
Application of the standard begins by asking whether a
compelling state interest supports the legitimacy of the
government action under challenge. 133 The "compelling state
interest" test states that, because the right to vote is a
fundamental one, a state must show a "compelling" rather than
mere "rational" justification to restrict it.134 The Supreme Court
has adopted a "casual" approach to identifying such interests, a
precedent fatal to many claims.1 35 In regards to election law,
fairly conducted elections are compelling interests.1 36 Strict
130
See Chambers, supra note 86, at 1398 (discussing affirmative action legislation as
a common example of a color-conscious rule). See also Ian Haney-L6pez, Intentional
Blindness, 87 N.Y.U. L. REV. 1779, 1783-84 (2012) ("Under colorblindness, the remedial
motives behind affirmative action are irrelevant. Indeed, frequently the Court asserts
that whether the government's motives are benign or invidious is inherently
unknowable. Distrusting its ability to parse the state's intentions, the Court under
colorblindness subjects all affirmative action policies to the most stringent level of
'scrutiny,' which is to say, it requires the highest level of governmental necessity before
such programs will be allowed."). Id. at 1783. Strict scrutiny is applied whether the state
action benefits or burdens disadvantaged groups. See Richard A. Primus, Equal
Protectionand DisparateImpact: Round Three, 117 HARV. L. REV. 493, 503 (2003).
131 Chambers, supra note 86, at 1398. See also,
Washington v. Davis, 426 U.S. 229,
240 (1976) (stating that "the invidious quality of a law claimed to be racially
discriminatory must ultimately be traced to a racially discriminatory purpose"). See, e.g.,
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (noting
that "[p]roof of racially discriminatory intent or purpose is required to show a violation of
the Equal Protection Clause"). Laws that abridge or deny the right to vote on account of
race or color may be found to violate the VRA. See 42 U.S.C. § 1973(a). Id. at 1398-99.
132 See Kobick, supra note 129, at 522 (citing cases in
support of the proposition that
courts typically invalidate government action when applying strict scrutiny).
133 See Joseph A. Bollhofer, Disenfranchisementof the College Student Vote: When a
Resident is not a Resident, Comment, 11:3 FORDHAM URB. L.J. 489, 494 (1982).
13
See City of Phoenix v. Kolodziejski, 399 U.S. 204, 208-09 (1970).
135 See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1321
(2007) (citing Stephen E. Gottlieb, Tears for Tiers on the Rehnquist Court, 4 U. PA. J.
CONST. L. 350, 367 (2002)). The Court has found interests compelling "on the basis of
little or no textual inquiry," such as the government's interest in protecting children or
the interest in maintaining a diverse student body at public colleges. Id. at 1322-23
(citing Denver Area Educ. Telecoms. Consortium, Inc. v. FCC, 518 U.S. 727, 755 (1996)
(plurality opinion) (protecting children from indecent or obscene television programming
is a compelling state interest), Gutter v. Bollinger, 539 U.S. 306, 328 (2003) (attaining
diverse student body is a compelling state interest)). The conclusory finding of a
sufficient state interest in Crawford, under an Anderson-Burdick balancing test, without
proof of voter fraud occurrence thus takes on new meaning.
136
Though a recent Fourteenth Amendment claim against a voter ID
law failed to
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
611
scrutiny also requires that a state action be narrowly tailored to
achieve its stated end. A state's means of applying a restriction
must be the most constricted available, providing further
protections for the abridged plaintiff interests. 137 This analysis
includes several questions of its own, beginning with whether
the infringement is necessary. A particular "law would not be
necessary to achieve its ends if the government could accomplish
the same result while inflicting lesser burdens on
protected rights." 138
Second, a court asks whether the infringement is underinclusive of the goals it seeks to advance. The official action "will
not survive strict scrutiny if it fails to regulate activities that
pose substantially the same threats to the government's
purportedly compelling interest as the conduct that the
government prohibits." 139 Finally, to assess the narrow tailoring
of a governmental action, the court balances the government
action to assess the extent to which it is over- and
under-inclusive.
Applicable here, the Supreme Court has interpreted the test
in the context of residency restrictions, shown above as
precursors to age-based discrimination claims challenging voter
ID laws. 140 Yet, as mentioned above, the application of the
analysis is invoked where a fundamental right or a suspect class
is involved, a death toll to its use for a Twenty-Sixth
Amendment claim. First, the Constitution does not explicitly
define a right to vote; rather, voting as a fundamental right has
evolved through its numerous prohibitions on restriction
reach this bar. See Crawford, 553 U.S. at 189.
137 See Kramer v. Union Free School Dist., 395 U.S. 621, 632 (1969).
138 Fallon, Jr., supra note 135, at 1326.
139 Fallon, Jr., supra note 135, at 1327. Though considered in the analysis,
the
under-inclusive question is not sufficient to invalidate a government statute. The court
considers over-inclusiveness as well, though has not issued clear guidance on its use. Id.
at 1329-30.
140
See Dunn v. Blumstein, 405 U.S. 330, 343 (1972) ("It is not sufficient for the State
to show that durational residence requirements further a very substantial state interest.
In pursuing that important interest, the State cannot choose means that unnecessarily
burden or restrict constitutionally protected activity. Statutes affecting constitutional
rights must be drawn with 'precision,' and must be 'tailored' to serve their legitimate
objectives. And if there are other, reasonable ways to achieve those goals with a lesser
burden on constitutionally protected activity, a State may not choose the way of greater
interference. If it acts at all, it must choose less drastic means.") (internal quotations
omitted).
612
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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embodied in the Fifteenth, 14 1 Nineteenth, 142 Twenty-Fourth,1 4 3
and Twenty-Sixth Amendments.
These restrictions on
abridgment suggest that the "right to vote has become not
merely a right to be distributed fairly to citizens regardless of
race . . . but also a fundamental right to be protected against
nonracial incursion."l 44 If voting is considered a fundamental
right, the Twenty-Sixth Amendment has the power to protect it,
and when the right to vote is denied strict scrutiny applies. 145
Yet this protection does not extend to burdens and
abridgments1 46 where courts have limited the application of
strict scrutiny and applied a lesser standard of analysis. For
example, the Seventh Circuit, in Crawfordl47 weighed the
justifications of early voting restrictions against those First and
Fourteenth Amendment rights of the plaintiffs. 148 In the interest
of equity and efficiency, the court rejected strict scrutiny as the
proper measure through which to analyze the alleged
infringement.1 49 The circuit resorted to the Anderson-Burdick
14
U.S. CONST. amend. XV § 1 ("The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any state on account of race,
color, or previous condition of servitude.").
142 U.S. CONST. amend. XIX ("The right of citizens of the United States
to vote shall
not be denied or abridged by the United States or by any state on account of sex.").
143 U.S. CONST. amend. XXIV, § 1 ("The right of citizens of the United States to vote
in any primary or other election for President or Vice President, for electors for President
or Vice President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any state by reason of failure to pay any poll tax or
other tax.").
144 Chambers, supra note 86, at 1425, n. 116.
145 See Dunn, 405 U.S. at 366 (holding state laws governing elections completely
denying an individual or group of individuals the right to vote are subject to strict
scrutiny review).
146 The Supreme Court has stated that the right to vote is "preservative of other
basic civil and political rights," unique among other derivative entitlements and
privileges. Reynold v. Sims, 377 U.S. 533, 562 (1963). The right to vote historically
warranted greater protection as it is susceptible to abuse by those who gain from its
manipulation, as seen through the events leading to enactment of the Civil Rights Act of
1964 and Voting Rights Act of 1965. Richard W. Trotter, Vote of Confidence: Crawford v.
Marion County Election Board, Voter Identification Laws, and The Suppression of a
Structural Right, 16 N.Y.U. J. LEGIS. & PUB. POL'Y 515, 520-21 (2013) (arguing for a
strict scrutiny standard for assessing voter ID law challenges, and more broadly
substantive challenges to the right to vote, after Crawford, given the increased evidence
of disproportionate effect on minorities and lack of evidence of voter fraud).
14. 472 F.3d at 949.
148 Id.
14s See Crawford, 553 U.S. at 204 (Scalia, J., concurring) (arguing that the AndersonBurdick test should be applied, as it "calls for application of a deferential important
regulatory interests standard for non-severe, nondiscriminatory restrictions, reserving
585]
A TWENTY- SIXTH AMENDMENT CHALLENGE
613
balancing test instead, recognizing the limited protection
warranted.15 0 The Supreme Court affirmed the Seventh Circuit's
finding in Crawford, agreeing that the legislation did not
warrant strict scrutiny.1 5 ' Applying Crawford, if a state's voter
ID law restricted the right to vote, but did not outright deny it,
strict scrutiny would not apply.1 52 Arguably voter ID laws meet
this classification; the laws restrict the votes of students without
acceptable identification, but do not completely deny students
the exercise of the right to vote. To warrant strict scrutiny, it
would thus be necessary to argue that students are a
protected class.
The argument that eighteen to twenty-one year olds are a
suspect class is challenging, as age is not a recognized as such.
Judicial precedent has narrowed the range of classifications
entitled to this level of review, suggesting youth will not be
added to the protected classes. 153 The First Circuit in Walgren v.
strict scrutiny for laws that severely restrict the right to vote") (internal quotation marks
and citations omitted) (emphasis added).
150
Id. at 949.
151 Crawford, 553 U.S. at 189 (citing Crawford, 472 F.3d at 952 ("A strict standard
would be especially inappropriate in a case such as this, in which the right to vote is on
both sides of the ledger.")). The Court's analysis hinged on what it saw as unavoidable
infringement on voting rights regardless of whether the state's implementation of voter
ID laws was held valid or not. The voter ID law would impair voting by burdening
certain individuals unable to comply with its requirements, but the court accepted the
proposition that without the legislation, votes would be diluted by the undetected
influence of voter fraud. Thus, the Court deemed a strict standard inappropriate Id. The
Court noted the law aimed to prevent voter dilution, even if it resulted in some reduction
of voting by eliminating some voting rights for those without means to acquire
identification.
152
The use of strict scrutiny to advance a Twenty-Sixth Amendment claim against
student voter ID laws may succeed in a political and social climate different from that in
Crawford. Since Indiana's voter ID law was passed, a wave of voter ID legislation
impeded many citizens seeking to exercise their right to vote. The resulting empirical
evidence of voter disenfranchisement accompanied the restrictions from these laws,
providing proof of a substantial burden that plagued past voter ID law challenges. See
Trotter, supra note 146, at 518. The lack of evidence of voter fraud and mounting proof of
the laws' disproportionate effect on minority and youth voters suggests a rethinking of
Crawford's determination that voter ID laws posed no "severe" burden. Minority and
youth voters have suffered significantly as a result of impediments to their voting,
including from voter ID laws. See, e.g., U.S. GOv'T ACCOUNTABILITY OFFICE, REP. No.
GAO-14-634, ISSUES RELATED TO STATE VOTER IDENTIFICATION LAWS (2014) (hereinafter
GAO, State Voter ID Laws) at 4 (arguing that the occurrence of in-person voter ID fraud
is insignificant, though data on the subject is not collected for easy access and evaluation
on the topic, while voter ID laws in Tennessee and Kansas affected youth and minority
voting).
153 Traditionally-though maybe youth should be a suspect class. The passage of the
Amendment itself is an indication that Congress considered those aged eighteen to
twenty-one years of age as requiring further protections. Their desire to enfranchise
614
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[2015
Howes1 54 did suggest creating a suspect class for eighteen to
twenty-one year olds in light of the Twenty-Sixth Amendment's
enactment. 15 5 That no movement advancing the court's
suggestion has occurred adds to the evidence that the suggestion
is at an impasse, unlikely to warrant strict scrutiny review
under a suspect class status. Discussed below, an additional
option is to present evidence that those members of the plaintiff
youth class are also members of other protected classes, such as
youth minority voters, and as such should be protected. 15 6 This
argument suggests that certain state acts target youth as a
correlative to racial background, which itself can serve as a
proxy for alternative identifications such as party leaning. The
success of proving the contention would vary based on state
composition and require further data to support the assertion.157
3.
Impact, not intent: Village of Arlington Heights
analysis.
A crucial element of Equal Protection analysis that triggers
the application of strict scrutiny is the finding of intent. Courts
may not invalidate a facially neutral state statute that produces
them with a fundamental right was a means to empower their voices, which would have
had to be considered formally suppressed to warrant the need to empower them. It is
also significant that age is an important consideration when determining punishment
and liberties, particularly for juveniles, though that discussion is beyond the scope of this
comment. See Fallon, Jr., supra note 135, at 1318 (noting that courts have refused to
automatically apply strict scrutiny to claims based on classes defined by gender, mental
state, poverty, and race-based affirmative action, among others).
154 482 F.2d 95 (1st Cir. 1973).
155 Id. at 102 ("Without attempting to define the boundaries of 'abridgement',
we
deem it sufficient to state . . . that it seems only sensible that if a condition, not
insignificant, disproportionately affects the voting rights of citizens specially protected
by a constitutional amendment the burden must shift to the governmental unit to show
how the statutory scheme effectuates, in the least drastic way, some compelling
governmental objective. In other words, the voting amendments would seem to have
made the specially protected groups, at least for voting-related purposes, akin to a
suspect class', to use the contemporary label.").
15
See, e.g., Veasey, 71 F. Supp. 3d at 701-02 (describing an equal protection
challenge brought by minority students against Texas' voter ID law which excludes the
use of student IDs to vote). The district court emphasized the connection between age,
status as college students, and minority status in finding the discriminatory intent in
the state's action. Id. at *55-56.
157 Another option proposed to allow a strict scrutiny standard is to implement it for
any substantive challenge to the right to vote See Trotter, supra note 146, at 521
(arguing for a bifurcated approach to voting infringement: the application of strict
scrutiny to substantive restrictions on the right to vote and application of the AndersonBurdick test to procedural restrictions).
A TWENTY-SIXTH AMENDMENT CHALLENGE
585]
615
a disproportionately harmful effect, even on a racial group,
without proof that is was enacted with intent to discriminate.15 8
In the abstract, the application of strict scrutiny to a state action
that illicitly and furtively restricts the voting rights of a
protected class would broaden the types of state action subject to
a heightened level of judicial review. In practice, however, the
"intent doctrine" applied by the courts, which "demands that
plaintiffs prove a state of mind akin to malice . . . is so exacting
that, since this test was announced in 1979, it has never
been met." 159
In the shadow of this largely impractical standard is the
Arlington Heights test, which seeks to identify state actions
enacted with a discriminatory purpose and that result in
disparate effects, though the laws are facially race neutral. 160
Rather than finding discriminatory intent on the face of a
statute-a virtual relic in modern litigation-it is inferred from
a series of factors regarding the law's passage. The challenged
action need not rest solely on discriminatory purposes, as long
as a discriminatory purpose was one goal sought by the
government action.1 61
The Supreme Court formulated the test in Village of
Arlington Heights,162 a case concerning a challenge to zoning
policies that barred subsidized and integrated multi-family
housing in an area designated for single family homes. To assess
the presence of intent to discriminate the court employs six nonexhaustive factors: (1) degree of disproportionate impact on a
(racial) group, (2) historical background of the decision, (3) the
sequence of events leading to the action, (4) extent of departure
"s
See Washington v. Davis, 426 U.S. 229, 240 (1976).
Ian Haney-L6pez, Intentional Blindness, 87 N.Y.U. L. REV. 1779, 1783 (2012)
("Plaintiffs challenging affirmative action under colorblindness virtually always win;
parties challenging discrimination under intent doctrine almost invariably lose.").
'60 The analysis is a framework for analyzing "whether invidious discriminatory
purpose was a motivating factor" in a government body's decision making. See Reno v.
Bossier Parish Sch. Bd., 520 U.S. 471, 488 (1997). The Court shifted away from a
"results" inquiry of effects on minorities and towards requiring discriminatory intent, or
"purpose." By requiring proof of discriminatory intent, the Court created an imposed
deference to the legislature on issues of segregation, integration, and affirmative
action-race neutral laws with disparate impact on a minority group. See Riva Siegal,
Forward: Equality Divided, 127 HAR. L. R. 2 (2013). If discriminatory intent were
discovered on a statute's face, strict scrutiny would apply.
1st Village of Arlington Heights v. Metro Housing Development, 429 U.S. 252, 265
(1977).
159
162
Id.
616
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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from typical procedural standards, (5) and from normally
applied substantive rules, and (6) the legislative history of the
decision. 163 Combined with a finding of disproportionate effect, 164
the court may find a government action impermissible under the
Equal Protection Clause.165
The Arlington Heights framework is the standard advanced
by the youth plaintiffs challenging North Carolina's voter ID law
in McCrory, and for good reason. The standard, developed from
Fourteenth Amendment litigation, provides for fact specific
analysis of state legislation that seeks to abridge the
constitutional rights of a select group. As compared with tests
under the Fifteenth Amendment or the unlikely application of
strict scrutiny, a Twenty-Sixth Amendment student voter ID
challenge under Arlington Heights would allow students to
determine why and for what purposes their right to vote is being
abridged. The Court has adopted and applied it for challenges
brought under the Equal Protection Clause, partly to evaluate a
§ 5 VRA claim,1 66 and to assess the motivations behind a
jurisdiction's change in voting laws. 167 Its history of adoption in
the analysis of varying statutory and constitutional challenges
renders it particularly appropriate for translation by the courts.
IV. APPLYING ARLINGTON-HEIGHTS
Under Arlington Heights, student voter ID laws would
undergo an analysis that traces the motives behind the law's
passage. When considering the impact of voter ID laws on youth,
the lack of support for and legislative history of their enactment,
and recent results of the 2014 election cycle, it is likely that
several voter ID laws would be invalidated. This prediction rests
163
See Arlington Heights, 429 U.S. at 266-68.
164
Burden does not equate with disproportionate impact. Disproportionate Impact
denotes an unequal effect on a, traditionally racial, group. See Ohio State Conference of
N.A.A.C.P. v. Husted, 768 F.3d 524, 546 (6th Cir. 2014) (stating "not all restrictions on
voting will be struck down simply because they impose any kind of burden").
165
See id. at 264-65. The Court states that under Washington v. Davis, 426 U.S. 229
(1976), "official action will not be held unconstitutional solely because it results in a
racially disparate impact . . .. Proof of racially discriminatory intent or purpose is
required to find a violation of the Equal Protection Clause." Id.
166 See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 488 (1997) (describing the
Court's application of the Arlington Heights standard to equal protection and § 5 claims).
167
See id. (applying Arlington Heights test to assess the a redistricting plan that
resulted in diluted minority voting power, but remanding application of the test to the
district court).
A TWENTY-SIXTH AMENDMENT CHALLENGE
585]
617
on the nature of the state's action, severity of the burden on
subgroups of students, and the words and actions of state
leaders in the history of its enactment. The next section seeks to
explore these areas, using data from recent elections as support
for the contention that certain student voter ID laws could
violate the Twenty-Sixth Amendment under the proposed
Arlington Heights framework.
Severe and Disproportionate Burden on Students
A.
The effects of an official action can be extreme enough to
warrant a finding of discriminatory intent by the court without
applying each of the Arlington-Heights six steps, such as
gerrymandering an entire minority population to dilute their
vote. 168 These "cases are rare," 169 and more often a challenged
governmental action will be questionable enough in intent to
require further scrutiny. The first prong of the test therefore
looks to whether a court would find that a state voter ID law
"bears more heavily" on one age-group-youth, here-"than
another." 7 0 A marginal showing of inequity and prejudice with
evidence attesting to the discriminatory impact is customarily
enough to satisfy this prong.1 71 Thus, even as student voter IDs
are singular components of larger voter ID laws applicable
across age-groups, the argument proposes that youth are
disproportionately affected because the laws deprive them of the
ability to use college-issued IDs for voter identification. 172
16"
See Gomillion v. Lightfoot, 364 U.S. 339 (1960) (finding the plaintiffs appealing
from a motion to dismiss alleged sufficient details to infer purposeful discrimination in
the gerrymandered boundaries of the city of Tuskagee, Alabama, which effectively
disenfranchised the entire black population).
169 Village of Arlington Heights v. Metro Housing Development, 429 U.S. 252, 266
(1977).
170
Id.
In Arlington, the Court determined that the impact of the Village's action "does
arguably bear more heavily on racial minorities .. . [who] constitute 18% of the Chicago
area population, and 40% of the income groups said to be eligible for Lincoln Green," the
planned racially-integrated housing development project whose construction was
impeded by the Village's refusal to rezone the construction site. See Arlington Heights,
429 U.S. at 269.
172 Supporters of voter ID legislation offer the argument that there is no deprivation
of a "right" in the imposition of ID requirements because voting without ID, or voting in
general, is a privilege that the states can constitutionally terminate. See Ron Christie,
Opinion: Voting in America is a Privilege, Not a Right, WNYC.ORG BLOG (Mar. 20, 2012,
3:30 PM), available at http: //www.wnyc.org/story/193288-opinion-voting-americaprivilege-not-right/, archived at http://perma.cc/3F48-5V6B (arguing that voting as a
171
618
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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The data on youth turnout following the implementation of
the voter ID laws supports the argument of disproportionate
effect. In recent elections, changes to state voter ID laws
resulted in a larger decrease among younger, African-American
registrants, as well as those voters recently registered in two
states. 173 After Kansas altered their voter ID laws, the affected
turnout among eighteen year olds fell 7.1 percent more than
that of adults between forty-four and fifty-three years of age
when compared to pre-enactment turnout for both groups. 174 A
similar disproportionate effect resulted when comparing turnout
among those aged nineteen to twenty-three years.17 5
Youth are traditionally a concern when analyzing voter
turnout, as hurdles to voting have impacted their participation
disproportionate to voters across other age groups. A precinctlevel study discovered that turnout among youth Floridian
voters in the 2012 General Election disproportionately decreased
when compared to older, white voters. 176 The report did not
address the results of voter ID restrictions, but on the turnout
effect caused by precinct closing times. It found that closing
privilege supports the contention that voter IDs are, and have been found by the Court to
be, valid regulations on the right to vote). The status of voting as a "fundamental right"
is a fractured one, with the Supreme Court unevenly applying two standards of review to
cases implicating or denying voting rights but failing to delineate bright line tests for
when either should apply. The public, however, believes the right to vote is a
fundamental one, as opposed to a privilege. See Joshua A. Douglas, Is the Right to Vote
Really Fundamental? 18 CORNELL J.L. & PUB. POL'Y 143, 145 (2008). I argue not that
voter ID laws are inherently unconstitutional as abridgements of the right to vote,
noting for instance that the Court has upheld reasonable regulations on the manner,
time, and place of elections. The argument, instead, is that even though the State may
determine acceptable forms of identification for its electorate, it cannot distinguish
between protected subgroups (youth, here) in doing so. The allowance, for instance, of
permits for concealed handguns or college Faculty IDs but the disallowance of student
IDs issued from public universities cannot be distinguished and upheld on a privilege
classification of the latter form of ID. This is especially true for laws enacted with a
purpose of reducing voter fraud without a showing that student IDs issued from a
governmental body pose a greater degree of risk than the other acceptable forms of ID.
In other words, even if the use of certain forms of ID are privileges, the state may not
allow privileges for some groups of voters over others.
173 GAO State Voter ID Laws, supra note
152.
174
175
Id. at 52.
Id.
See Michael C. Herron & Daniel A. Smith, Congestion at the Polls: A
Study of
Florida Precincts in the 2012 General Election, Advancement Project (June 24, 2013),
available at http://b.3cdn.net/advancement/f5dl203189ce2aabfc14m6vzttt.pdf, archived
at http: /perma.cclV3K2-5Q9Y (studying the impact of precinct-level polling place closing
times on voter waiting among 90 percent of Florida's registered voters in the 2012
General Election).
176
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
619
times and early voting resulted in disproportionately longer
waiting times in some counties with higher percentages of
youth, Black, and Hispanic voters, respectively.17 7 The hurdles
can easily be compared to voter ID restrictions as one of the
many parallel concerns the legislature noted when passing the
Twenty-Sixth Amendment.17 8
The disproportionate impact among minority youth is also
critical under Arlington Heights. Racial and ethnic identity is
often used as a proxy to age when comparing the effect of voter
ID laws and general barriers to voting, as race and youth have
converged as identifiers in the changing U.S. population. The
declining percentage of non-Hispanic white voters under 30
years of age is met by a rise in African-American and Hispanic
voters, with one in five voters under 30 years of age identified as
Hispanic. This is crucial to the intent of voter ID law analysis,
as race and background have contributed to the change in party
preference across age groups in recent general elections, and
these identifiers have served as recipients of voting rights
abridgement by student voter ID laws by proxy.' 9 Voter ID laws
also disproportionately abridge the rights of minority youth with
Democratic
leanings,
a
recent
trend
that portends
discriminatory intent. Black and Hispanic voters voted in
177 Id. at 50-56. In comparison, in dense, urban centers Hispanic
and Black voters
had access to precincts with later closing times than White voters. The analysis as a
whole, however, found the impact of these voting restrictions disproportionate on a whole
to minority voters.
'8 The Senate Committee on the Judiciary Report preceding the Twenty-Sixth
Amendment's adoption notes that "forcing young voters to undertake special burdensobtaining absentee ballots, or traveling to one centralized location in each city, for
example-in order to exercise their right to vote might well serve to dissuade them from
participating in the election," as a concern to be addressed by crafting it. See REP. No.
26, 92d Cong., 1st Sess. (1971) at 14.
179 In Veasey v. Perry, the District Court found as much, stating "[w]hen the
legislature rejected student IDs, state government employee IDs, and federal IDs, they
rejected IDs that are disproportionately held by African-Americans and Hispanics."
Veasey, 71 F. Supp. 3d at 658-59. Data also supports this. The probability that a college
student will be of a racial background that is not white is increasing. From 1976 to 2011,
the representation of White students attending college decreased 23 percent while an
increase resulted in the number of Hispanic, Asian and Pacific Islander, Black, and
American Indian/Alaska Native students attending school. Enrollment has increased for:
Hispanic students from 4 to 14 percent, Asian/Pacific Islander from 2 to 6 percent, Black
from 10 to 15 percent, and American Indian/Alaska Native from 0.7 to 0.9 percent. See
Digest of Education Statistics, 2012 (NCES 2014-015), U.S. DEPARTMENT OF EDUCATION,
NT'L CTR. FOR EDUCATION STATISTICS (2013) [hereinafter NCES EDUCATION STATISTICS],
available at http://nces.ed.gov/programs/digest/dl2/ch_3.asp. As the population of youth
grows, college attendance increases, and the college population becomes more diverse,
the implications that result from student voter ID laws become more complex.
620
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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unprecedented numbers for Democratic candidates, voting 95
and 60 percent respectively for Barack Obama in the 2008
General Election, 180 contributing along with youth to the success
of Obama's election to office. To compare, while 61 percent of all
eighteen to thirty year old voters favored Obama, white voters
within this percentage as a subgroup split evenly in favor of
Obama and Romney. 181 58 percent of white voters-who tend to
be older-voted for Mitt Romney. 182 This suggests a large
proportion of non-white voters under the age of 30 voted for the
Democratic candidate.
There is doubt that current restrictions on the access to the
polls have resulted in a wholesale abridgement of youth's right
to vote. Voters under the age of thirty voted in a higher
percentage in the 2014 mid-term elections than those in 2010,
with a 13 percent turnout compared to a previous 12 percent. 183
However, there is no analysis of subgroups within this
population, such as what percentage of college-aged students
turned out to vote in the face of early voting period reductions
and polling place limitations enacted before the 2014 election.
Overall, turnout in the 2014-midterm elections declined to 36.6
percent among registered voters from 40.9 percent in 2010.184
Turnout in Texas declined to 28.5 percent from the previous
midterm turnout of 32.6 in 2010, while North Carolina
experienced a slight increase in turnout to 40.7 percent, up from
39.8.185 The data on turnout, and in particular on Kansas and
Tennessee's decrease in youth turnout as a result of the states'
student ID restrictions, suggests a Twenty-Sixth Amendment
18o The Generation Gap and the 2012 Election, PEW RESEARCH CENTER FOR THE
PEOPLE & THE PRESS 2 (Nov. 3, 2011), available at http://www.peoplepress.org/2011/1 1/03/section-2-generations-and-the-2012-election/,
archived at http://
perma.cc/K7WZ-B29H.
181 Id.
182
Id.
"a Jocelyn Kiley, As GOP Celebrates win, no sign of narrowinggender, age gaps,
PEW RESEARCH CENTER (Nov. 5, 2014), available at http://www.pewresearch.org/facttank/2014/11/05/as-gop-celebrates-win-no-sign-of-narrowing-gender-age-gaps/, archived
at http://perma.cclNK6T-2B6M (finding that in the 2014 mid-term elections, youth aged
18 to 29 years voted for Democratic candidates by an 11-point margin over Republican
candidates according to exit poll data).
184 Lindsey Cook, Midterm Turnout Down in 2014, U.S. NEWS & WORLD REPORT
(Nov. 5, 2014, 3:00 PM), available at http://www.usnews.com/news/blogs/datamine/2014/11/05/midterm-turnout-decreased-in-all-but-12-states,
archived at http: //
perma.cc/5M4E-8LXC.
18s
Id.
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
621
claim would meet the disproportionate impact prong of
Arlington Heights.186 The analysis depends on empirical
evidence of the plaintiff class, which is also required to support
the second prong-the historical background that laid the
foundation for the instituted legislation.
B.
Historical Background of the Decision
The second prong of the Arlington Heights analysis concerns
the historical record supporting the government action, and
whether it "reveals a series of actions taken for invidious
purposes."1 8 7 Typically, the absence of a public safety, health, or
welfare concern in the historical catalogue of asserted
justifications advanced for adopting a government action is an
indication that the prong will be met. 8 8 Other times, "a clear
pattern, unexplainable on grounds other than race [or age],
emerges from the effect of the state action even when the
governing legislation appears neutral on its face." 18 9 In the case
of voter ID laws, the absence of other grounds to explain the
law's intentional exclusion of student IDs would strongly signify
the prong as met.
As justification for the legislation, states with voter ID laws
offer two reasons for their passage: the reduction of voter
&
1s6 The data assessing impact is recent but no less relevant. Turnout among
all
voters was depressed in the 2014 midterm elections, the worst midterm turnout since
1942. Discerning cause and effect is not clear cut nor theoretically possible for
determination of direct causation for any factor affecting voting, but the increase in
Voter ID legislation is arguably a contributor to the recent elections. See Trip Gabriel
Manny Fernandez, Voter ID Laws Scrutinized for Impact on Midterms, N.Y. TIMES (Nov.
18, 2014), available at http://www.nytimes.com/2014/11/19/us/voter-id-laws-midtermelections.html?_r=0. Even if the data suggests student voter ID restrictions did not
significantly affect turnout depression, the analysis is not lost. Arlington Heights does
not employ a significance test, but merely requires a showing of disproportionate harm
on racial groups (applied to youth here) as compared to the general population.
1s7 Arlington Heights, 429 U.S. at 267 (citing Griffin v. Cnty. Sch. Bd. of Prince
Edward Cnty., 377 U.S. 218, 231 (1964)). In a case concerning the state's action of
signaling out one county and disallowing public school attendance for students within it,
the court found that the historical background of the state's decision evinced a
discriminatory intent. The "record in the present case could not be clearer that Prince
Edward's public schools were closed and private schools operated in their place with
state and county assistance, for one reason, and one reason only: to ensure, through
measures taken by the county and the State, that white and colored children in Prince
Edward County would not, under any circumstances, go to the same school." Id.
'88 See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
'89 Arlington Heights, 429 U.S. at 266 (citing Yick Wo, 118 U.S.).
622
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[ 2015
fraudl 90 and the increase of public confidence in the legitimacy of
the voting system. 191 States that exclude student IDs as a part of
their voter ID scheme add the purpose of preventing out-of-state
students from casting ballots in both their home state and where
they attend college. 192 In challenges to general voter ID laws,
such as in Indiana, courts have found the proffered justification
of reducing voter fraud legitimate.1 93 Whether the allegations
are justified can arguably turn on whether there is a public
concern in reducing voter fraud through voter ID legislation.
Though these goals are lofty, the purposes of voter ID laws
are incompatible with these aims and the laws' ability to
address them. A 2012 study of election fraud suggests that inperson voter fraud is insignificant, while organized efforts of
submitting fraudulent votes, such as absentee ballots, have a
much higher incidence of fraud. 194 Despite this, only two states
require absentee voters to submit photo identification when
voting. 195 Theoretically, a student-resident whose parents live
out of state or who is absent for the election cycle in their
See, e.g., Frank v. Walker, 135 S. Ct. 7 (2014).
See, e.g., Crawford, 553 U.S. at 197.
192 See Matt Apuzzo, Students JoiningBattle to Upend Laws
on Voter ID, N.Y. TIMES
(July 5, 2014), available at http: /www.nytimes.com/2014/07/06/us/college-studentsJeff Tarte, one Republican
claim-voter-id-laws-discriminate-based-on-age.html?_r=1.
state senator who supported the North Carolina Voter ID law, remarked his concern
over the dual submission of absentee ballots and in-person voting in two states. Tarte
stated, "[n]ot that they would necessarily ... but why even offer that possibility to
'9o
191
occur?" Id.
See, e.g., Crawford, 553 U.S. at 181 (citing the reduction of voter fraud as a
19
legitimate purpose to enact state voter ID law under the Anderson-Burdick balancing
test).
194 See Corbin Carson, Election Fraud in America, NEWS 21 (Aug. 12, 2012),
available
at
http: /votingrights.news21.com/interactive/election-fraud-database/,
archived at http:lperma.cc/BZD2-8Z49. See also Natasha Khan and Corbin Carson, New
database of US voter fraud finds no evidence that photo ID laws are needed, NBC News,
http: /investigations.nbcnews.com/news/2012/
11,
2012),
available at
(Aug.
08/11/13236464-new-database-of-us-voter-fraud-finds-no-evidence-that-photo-id-laws-are
-needed, archived at http: Iperma.cc/ FE3R-BCKF; Justin Levitt, The Truth About Voter
Fraud, THE BRENNAN CENTER FOR JUSTICE (2007), available at http://
www.brennancenter.org/sites/default/iles/analysis/The%2Truth%20About%20OVoter%2
OFraud.pdf, archived at http://perma.cc/3FMC-ZW7P (arguing against the actuality of
claimed voter fraud); GAO, State Voter ID Laws, supra note 152, at 4 (arguing that the
occurrence of in-person voter ID fraud is insignificant, though data on the subject is not
collected for easy access and evaluation on the topic).
195 Kansas and Alabama. See Wendy R Weiser & Lawrence Norden, VOTING LAW
CHANGES IN 2012, BRENNAN CTR. FOR JUSTICE 6 (2012), available at
https://www.brennancenter.org/sites/default/files/legacy/Democracy/VRE/BrennanVotin
gLawV10.pdf, archived at https://perma.cc/W6WH-8HJ6.
585]1
A TWENTY-SIXTH AMENDMENT CHALLENGE
623
campus locality may vote without identification by absentee
ballot, though they could not vote in person with student ID.
This suggests voter ID laws that restrict the incidence of inperson voting, yet permit the use of absentee ballots without
accompanying identification, actually increase the risk of fraud.
Support for this contention is further found in the broader
voting legislation itself. North Carolina's H.R. 589 restricts the
use of student IDs for the purpose of preventing absentee ballot
fraud.196 Yet H.R. 589 denies the ability of the state's
Department of Motor Vehicles to pre-register seventeen year
olds, which would ensure they receive a government-issued
acceptable ID and may vote. 197 H.R. 589 allows other forms of
ID, such as military and veteran IDs, though no evidence
suggests that absentee ballots and ballot abuse are unique to
student ID use.
Considering the favorable precedent supporting voter fraud
justifications, the success of a Twenty-Sixth Amendment
challenge under Arlington Heights depends on an ability to
prove the lack of actual fraud occurring via voter ID use. As
noted, recent studies suggest a dearth of information on actual
voter fraud incidence, and may present substantial hurdles to
this task. The laws consequentially exist amidst uncertainty. If
they overcome the evidentiary burden, they would then need to
offer historical background and the asserted rationale the
legislation's proponents' advanced.
C.
Sequence of Events Leading up to Government Action
The Court in Arlington Heights noted the importance of
considering the sequence of events that preceded the
196 North Carolina's voter ID law's title demonstrates
its stated purpose of
preventing voter ID fraud: "An Act To Restore Confidence In Government By Establishing
The Voter Information Verification Act To Promote The Electoral Process Through
Education And Increased Registration Of Voters And By Requiring Voters To Provide
Photo Identification Before Voting To Protect The Right Of Each Registered Voter To
Cast A Secure Vote With Reasonable Security Measures That Confirm Voter Identity As
Accurately As Possible Without Restriction, And To Further Reform The Election Laws."
See H.R. 589 (N.C. 2013) (emphasis added). See also Texas Bill Analysis, S.B. 14 (Mar.
23, 2011). Describing the arguments advanced by proponents, the Report states "CSSB
14 is commonsense legislation that would strengthen the election process. The bill would
deter voter fraud, keep ineligible voters from voting, make voting correspond with other
transactions that require photo ID, and restore and enhance public confidence in
elections, which would promote higher turnout." See id.
197 The state later reversed this policy without reason. See Matt Apuzzo, supra note
192.
624
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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government action when assessing discriminatory intent. In
election law, this can take the form of previous state attempts to
limit a class's vote. 198 It can also be seen in the legislative
history and timing of state voter ID law enactment, both
portraying an illegitimate purpose in the implementation of
student voter ID laws. The path to implementation and timing
of student ID restrictions in voter ID legislation signals at the
very least a correlation with the outcomes of the 2004 and 2008
elections, and thus a motive inspired more by political outcome
than fraud. The difference in voting preferences across age
groups-a recent occurrence borne out of the 2004 and 2006
elections-became a substantial factor in the 2008 General
Election results. 199
Following the election, legislatures faced a growing
minority-based
and Democratic-leaning youth electorate
replacing an aging and predictable base of support. 200 This
prompted concern in those legislatures in states with a
significant youth electorate, predominately concentrated in
college campuses, and perceived to hold a specific voting
preference. In 2010, partisan control of state legislatures shifted
to the Republican Party 20 1 and newly minted Republican state
legislators passed restrictive voter ID laws. 2 02 State voter ID
198
See, e.g., Lane v. Wilson, 307 U.S. 268, 275-76 (1939) (finding that a 12-day
voting registration period which had the disparate effect of preventing black members of
the community from voter registration violated the Fifteenth Amendment in light of the
state's history of racial disenfranchisement).
199 Kiley, supra note 183 (citing The Generation Gap and the 2012 Election, PEW
RESEARCH
CENTER FOR THE
PEOPLE & THE PRESS (Nov.
3,
2011),
available at
http: lwww.people-press.org/2011/11/03/section-2-generations-and-the-2012-election/, archived at http://perma.cc/94AE-AA2Q. In the 2008 General Elections, 66 percent of
voters aged 18-29 years voted for Barack Obama, compared to only 45 percent of voters
over the age of 65. The divide continued in 2012, with 62 percent of voters under 30
years of age and 42 percent of those over 65 years voting for Obama. The shift to
Democratic voting, the report argues, is remarkably evident from the youth votes'
traditional correlation with the preferences of the older generation, and the Republican
Party in particular. In comparison to previous identification with the Republican Party,
voters who turned 18 during the Clinton, Bush, or Obama presidencies have voted more
Democratic than the average population.
200 From 2001 to 2011, the number of eighteen to twenty-four year olds in the
general population increased from 28 million to 31.1 million, and enrollment in college
increased 32 percent. See NCES EDUCATION STATISTICS.
201 Republicans gained 675 state legislature seats and control over
both legislative
chambers in twenty-six states. VOTING LAW CHANGES IN 2012, at 10.
202
VOTING LAW CHANGES IN 2012, at 9 (noting "[n]ewly elected legislators introduced
about a quarter of these [strict voter ID] bills"). Though this covers other restrictive
measures, such as elimination of early voting, the most common form of voting
585]
A TWENTY-SIXTH AMENDMENT CHALLENGE
625
laws proliferated, 20 3 excluding the use of college-issued IDs and
impacting the proportion of the populace enfranchised by the
Twenty-Sixth Amendment. 204 As three times as many students
attend public degree-granting institutions as private colleges, 205
so did laws that rid the use of these government-issued IDs
become an effective way to limit students' voting power and
lessen the Democratic voting bloc. 2 06
Concern over youth voting preferences and partisan control
suggests a comprehensive effort to restrict this class of voters
from exercising their rights. The Republican legislature in
Wisconsin, for instance, passed its voter ID law in 2010,
excluding the formerly permitted student ID use for
registration. 207 Several states followed, including Tennessee,
where state law restricted the use of student college IDs but
permitted the use of faculty IDs issued by the same
institutions. 2 0 8 The result: reduced youth and minority turnout
restrictions is the requirement to present specified forms of photo ID. See Lori A.
Ringhand, Voter Viewpoint Discrimination: A First Amendment Challenge to Voter
ParticipationRestrictions, 13 ELECTION L.J. 288, 290 (2014).
203
In 2011, thirty-four states introduced some form of voter ID law. The number of
states requiring government-issued photo ID quadrupled in the same year. See VOTING
LAW CHANGES IN 2012, at 2.
204 As of 2014, accommodations for age-specific ID allowances are notably absent
from the eleven states with the strictest limits on acceptable forms of photo ID. See ARK.
CODE ANN. §§7-1-101, 7-5-201, 7-5-305, 7-5-321; GA. CODE ANN. § 21-2-417; IND. CODE
§§3-5-2-40.5, 3-11-8-25.1, 3-11.7-5-2.5; KAN. STAT. ANN. §§25-2908, 25-1122; MISS. CODE
ANN. §23-15-563; N.C. GEN. STAT. ANN. § 163-166.13; N.H. REV. STAT. ANN. §659:13;
TENN. CODE ANN. §2-7-112; VA. CODE ANN. §§ 24.2-643, 24.2-653; WIS. STAT. ANN. §§5.02,
6.79(2), 6.97(3). Arkansas' law was held unconstitutional and stayed pending appeal. See
Ark. State Bd. of Election Comm'rs v. Pulaski Cnty. Election Comm'n, 437 S.W. 3d 80
(Ark. 2014). Oral arguments were heard on Oct. 2, 2014. Wisconsin's law was enjoined,
but reinstated upon appeal Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), still subject to
further appeal.
205 As of 2010, over 15 million students enrolled in a public four- or two-year
college,
compared to 3.85 million enrolled in non-profit institutions and just over 2 million
enrolled in private for-profit colleges. See NCES EDUCATION STATISTICS at Table 219.
206
In 2011, 88 percent of students at public four-year colleges and 71 percent of
students at public two-year institutions were under the age of twenty-five.
Characteristicsof Postsecondary Students, U.S. DEPARTMENT OF EDUCATION, NT'L CTR.
available at
May
2014),
(last
updated
STATISTICS
FOR
EDUCATION
archived at http://perma.cc/66ZEhttp: /nces.ed.gov/programs/coe/indicator-csb.asp,
697H.
207
See WIS. STAT. ANN. §§ 5.02, 6.79(2), 6.97(3). The Supreme Court blocked the 2014
implementation of Wisconsin's Voter ID law on Oct. 9th, 2014. See Frank, 768 F.3d at
744, still subject to further appeal.
208
TENN. CODE ANN. § 2-7-112. See also Dan Froomkin, Voter ID Laws Take Aim at
College-Student Voters, HUFFINGTON POST (Sept. 22, 2012, 10:16 AM), available at
http://www.huffingtonpost.com/2012/09/22/voter-id-laws-gop-college-student-n_1791568.
626
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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in the 2014-midterm elections. 209 In North Carolina, youth aged
between eighteen to twenty-nine years old have recently voted
Democratic, 210 and were the only age group that held a majority
vote for Obama. 2 11 Yet, in anticipation of the 2012 General
Election, several county boards of elections closed early voting
sites on college campuses in their regions and removed
numerous colleges from on-campus election privileges. 2 12
The legislative history surrounding Texas's voter ID laws
lends support to the contention that the laws were passed over
concern with how students vote. Texas has a history of limiting
the voting rights of college-aged students and of racially
polarized voting. 213 The State placed a proverbial target on
youths' right to vote from enfranchisement. 2 1 4 And when the
html, archived at http://perma.cc/J7TG-UBMU ("In Tennessee, for instance, a
university-provided ID is not considered acceptable proof of identity for students, but it
is for faculty.").
209 See GAO, State Voter ID Laws, supra note 152. The GAO report found reduced
turnout among young and minority voters in Tennessee and Kansas as a result of their
voter ID laws.
210 Kiley, supra note 183. A majority of youth in this age range have leaned
Democratic since 2004, whereas before 2004 the age-bracket was nearly equally divided
in preference across parties.
211 Election Center 2008, CNN (2008), available at http://www.cnn.com/ELECTION/
2008/results/individual/#mapPNC, archived at http://perma.cc/9EEN-XNVU (showing 74
percent of eighteen to twenty-nine year olds voted for Obama).
212 In addition to these barriers, the legislature concurrently instituted H.R.
589,
North Carolina's voter ID law that excludes the use of student IDs. The results of the
restrictions may have contributed to the decline in Democratic votes in 2014's midterm
elections. See Evan Walker-Wells, Blocking the Youth Vote in the South, COMMON
DREAMS (Oct. 29, 2014), available at http://www.commondreams.org/views/2014/10/29/
blocking-youth-vote-south, archived at http://perma.cc/3T3R-AQM9. Notable as well is a
recent election that placed all of North Carolina's 100 county boards under Republican
control for the first time in 20 years. See Gary D. Robertson, N.C. elections chairman
calls for respect on boards, HAMPTONROADS.COM (Aug. 21, 2013, 10:54 PM), available at
http:Ihamptonroads.com/2013/08/nc-elections-chairman-calls-respect-boards.
213 See Veasey, 71 F. Supp. 3d at 637 ("Racially polarized voting exists when the race
or ethnicity of a voter correlates with the voter's candidate preference. In other words,
and in the context of Texas's political landscape, Anglos vote for Republican candidates
at a significantly higher rate relative to African-Americans and Hispanics.").
214 Immediately after the Amendment was ratified, Texas was one among few states
that tightened residency requirements. See Fish, supra note 8, at 1208-09. See also
Veasey, 71 F. Supp. 3d at 636 (describing Texas' attempts to restrict college students'
voting rights over 37 years). The state passed a statute prohibiting students from
acquiring domicile status at their college or university unless "he intends to remain
there and to make that place his home indefinitely after he ceases to be a student." See
TEX. ELEC. CODE ANN. art. § 5.08(k) (Vernon Supp. 1982). The Fifth Circuit held the
statute violated the Equal Protection Clause, and the Supreme Court intervened to
enjoin its enforcement. See Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973); United
States v. State of Tex., 445 F. Supp. 1245 (S.D. Tex. 1978) aff'd sub nom., Symm v.
585]
A TWENTY- SIXTH AMENDMENT CHALLENGE
627
population demographics of Texas changed, so too did their state
election law. With 89 percent of their population growth
attributable to minorities, 215 the state has a predictably
Democratic-leaning youth as its electorate. Greg Abbott, the
Attorney General of Texas, even noted the law's concern with
party strength, clarifying Texas's redistricting decisions as
targeting not racial minorities, but Democrats. 216
Texas's original voter ID law accepted student IDs issued by
public or private institutions of higher education. 217 In 2007, it
was changed to permit only the use of IDs issued by Texas-based
institutions. 2 18 Texas again changed the law in 2009 with S.B.
362, which completely omitted the use of student IDs. 2 1 9
Republican state senators introduced Texas' current law, passed
in 2011, in spite of and in recognition of the fact that 4.5 percent
of the state's registered voters would not be able to vote as a
result.2 2 0 The legislature ignored amendments that would have
expanded acceptable forms of ID, 2 2 1 recognizing the reduction in
voter eligibility as an expectation of the law's implementation.
The historical context surrounding the passage of voter ID
laws' evinces concern over student voting, particularly after the
United States, 439 U.S. 1105 (1979). This led to the only case where the Court
considered the Twenty-Sixth Amendment.
21
See Texas RedistrictingFight is Boon To Lawyers, CBS NEWS (Mar. 31, 2014, 6:20
AM),
http://dfw.cbslocal.com/2014/03/31/texas-redistricting-fight-is-boon-to-lawyers/,
archivedat http://perma.cc/8WSQ-2EHP.
216 Abbott stated, "DOJ's accusations of racial discrimination are baseless. In
2011,
both houses of the Texas Legislature were controlled by large Republican majorities, and
their redistricting decisions were designed to increase the Republican Party's electoral
prospects at the expense of the Democrats. It is perfectly constitutional for a Republicancontrolled legislature to make partisan districting decisions, even if there are incidental
effects on minority voters who support Democratic candidates." See Defendant's
Response to Plaintiffs, Perez v. State of Texas, Civil Action No. SA-11-CA-360-OLG-JESXR (W.D. Texas 2013). The resulting redistricting of three new districts gained by the
State was a white and Republican leaning demographic. See Texas RedistrictingFight is
Boon To Lawyers, CBS NEWS.
217
See H.B. 1706 (2005).
See H.B. 218 (2007).
See S.B. 362 (2009). Handgun licenses are still permitted for ID verification
under the law.
220
E.G. Austin, So, is it suppressing voters?, THE ECONOMIST
(Nov. 3, 2014,
10:40pm),
available at http: //www.economist.com/blogs/democracyinamerica/2014/
11/texass-voter-id-law, archived at http://perma.cc/4E9A-FYZ7 (finding the requirement
was tantamount to a poll tax).
221
See Texas v. Holder, 888 F. Supp. 2d 113, 144 (D.D.C. 2012) vacated and
remanded, 133 S. Ct. 2886 (2013). The legislature tabled or defeated an amendment,
among others, that would have allowed student IDs.
218
219
628
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[ 2015
2008 and 2012 election cycles. The history of each legislature's
adoption is unique, so that the Arlington Heights analysis will
depend on the extent and obviousness of a particular state's
previous attempts to suppress youth voting. States such as
Texas, with clear legislative attempts to restrict the youth vote
through residency restrictions and student ID laws, will have a
harder time defending their laws than states without such
backgrounds. The three considerations above offer a substantial
opportunity for challenges to student voter ID laws to succeed.
The remaining considerations, applied sporadically as factors in
the Arlington Heights analysis, may also provide a level of
scrutiny to assess a state's voter ID law.
D.
Extent of Departure from Typical Procedural and
Substantive Standards
The Court in Arlington Heights also noted briefly that
evidence of a government's departure from past procedures and
substantive standards can be assessed to determine whether the
action signals discriminatory intent. A change in election law
enacted in time to hinder a successful candidate's election can
serve as this signal, 222 while substantive departures in the
content of laws hint of discriminatory intent, as when a law is
applied unequally across groups or crafted to favor one class of
voters over others. 223 Texas's unique series of procedural
changes approaching S.B. 14's passage raise relevant concerns.
To pass the voter ID law, Governor Rick Perry and the
legislature departed from procedural norms and designated the
bill as emergency legislation. 224 They also amended Senate rules
to allow it to pass outside the traditional two-thirds majority. 225
The fourth and fifth prongs of the analysis offer a very factspecific analysis of an individual state's legislation and how it
222 See, e.g., Jeffers v. Clinton, 740 F. Supp. 585
(E.D. Ark. 1990) (noting that a
majority vote run-off statute signaled an attempt to reduce political opportunity for black
candidates since it was passed only after a black candidate was successful).
223 See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (finding a city ordinance
barring the operation of laundry services in wooden buildings was applied substantively
unequally when supervisors granted variances to the restriction only to white-owned
businesses).
224 See S.J. of Tex., 82nd Leg., R.S. 54 (2011), H.J. of Tex., 82nd Leg., R.S. 80 (2011)
(designating the legislation as emergency).
225 See S.J. of Tex., 82nd Leg., R.S. 43 (2011) (Sen. Res. 36) (overriding the twothirds rule).
585]
A TWENTY- SIXTH AMENDMENT CHALLENGE
629
was passed. Questionable substantive and procedural changes
can be found in the allowance of some form of IDs over others, or
in the opportune timing of their passage following the
Democratic Party's success with youth voters in the 2008
elections. Voter ID laws that restrict some forms of ID over
others similar in nature arguably depart from an adoption of a
procedural standard of requiring government issued IDs. In
Texas, a voter may present a license to carry a concealed
handgun issued by the state's Department of Public Safety, but
may not use a public student ID. 2 2 6 Though there is no difference
in quality among the IDs, with both issued by the state, one
targets a segment of the population based on the type of ID they
are most likely to carry. The success and applicability of the
prongs to a claim will vary, supporting a Twenty-Sixth
Amendment argument for states that reduced youth voting
rights with other voting abridgment, or identified student IDs
uniquely as prohibited forms of identification.
E.
Legislative History
In Arlington Heights, the Court identified a final factor for
suggested examination in determining whether a governmental
action was enacted with invidious intent. The Court stated that
in the analysis, "[t]he legislative or administrative history may
be highly relevant, especially where there are contemporary
statements by members of the decisionmaking body, minutes of
its meetings, or reports." 22 7 Inferences of ulterior motives, goals,
or discriminatory statements said in the course of enacting the
action at issue may contribute to the belief that a law serves an
invalid purpose.
In the case of Texas, the history of S.B. 14 is etched in years
of legislative debates and mutable stated goals. In 2012, prior to
the law's passage, Texas sought approval for its program under
the now defunct preclearance requirements of the VRA, and a
its
D.C.
denied
panel
in
Washington,
three-judge
implementation. 22 8 The panel stated that rather than showing
that it would not lead to a "retrogression in the position of racial
minorities with respect to their effective exercise of the electoral
226
227
228
See S.B. 362 (2009).
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977).
Texas v. Holder, 888 F. Supp. 2d 113, 144-45 (D.D.C. 2012).
630
THE UNIVERSITY OF CHICAGO LEGAL
FORUM
[ 2015
franchise . .
if implemented, S.B. 14 will likely have a
retrogressive effect." 229 S.B. 14, the panel continued, "imposes
strict, unforgiving burdens on the poor, and racial minorities in
Texas are disproportionately likely to live in poverty." 230 Despite
the court's analysis that the law served invalid purposes, the
nullification of the VRA's preclearance provision allowed Texas
to proceed on full notice of its discriminatory impact on
minorities (and therefore youth).
A House Research Organization Report, released during the
course of the bill's path through the state legislature, stated as
much, noting the inconsistencies between the perceived
discriminatory results of the bill and the lack of government
justification that would warrant the suppression of votes. The
report, which took no outright position, summarized the bill's
opponents as citing the "little or no evidence of the voter fraud
this bill purports to address." 231 The report's analysis of S.B. 14
included two pages of concerns stated by opponents of its
passage, compared to the one page of supporting rationale that
contained no statistical evidence to warrant the stated goals.
The justifications asserted for Texas's bill in debates leading
up to its passage provide further indications that an invidious
motive prompted its creation. On March 21, 2011,
Representative Patricia Harless, the author of S.B. 14, stated
the bill dealt with "potential voter fraud," but when unable to
provide empirical evidence of such stated "[t]he purpose of this
legislation is that when you show up to vote, you are who you
say you are ... and we could stay here all day long discussing
the fraud, but that is not what this bill is about." 2 3 2 When asked
about the lack of absentee ballot legislation to detect fraud,
Representative Harless responded that her concern was only
about in-person fraud and public confidence in the election
system.233
Id. at 114. Retrogressive effect is "the effect of denying or abridging the right to
vote on account of race." Id. at 117 (citing Georgia v. United States, 411 U.S. 526 (1973)).
230 Id. at 55.
229
221
HOUSE RESEARCH ORGANIZATION BILL ANALYSIS, SB 14, COMMITTEE
ON VOTER
IDENTIFICATION AND VOTER FRAUD, 8 (Mar. 23, 2014), available at http: //www.hro.house.
state.tx.us/pdflba82rsb0O14.pdf#navpanes=0, archived at http://perma.cc/FFQ8-PKCP.
232 Texas House Journal, 2011 Reg. Sess. No. 38 (statement
of Representative.
Harless). The Representative admitted the state did not have tools to deter or detect
fraud.
Id. Mail-in ballot fraud constituted 70 percent of the Attorney General's
prosecutions at the time.
233
A TWENTY- SIXTH AMENDMENT CHALLENGE
585]1
631
In the course of debate on the bill in the Texas legislature,
Representatives opposing the enacted version of S.B. 14
provided evidence of voter suppression to advance support for
disenfranchisement.
soften
would
that
amendments
Representative Marc Veasey offered Amendment No. 55 to S.B.
14, which would have required the State to monitor the impact
of the voter ID law on members of a racial or ethnic group, and
allow members to vote with their voter registration certificate at
the following election if a majority of their minority group lacked
requisite ID. 2 34 Representative Jos6 Men6ndez summarized the
course of the proceedings, stating: "Numerous amendments to
improve SB 14 would have made the bill more fair [sic] by
reducing the risk of disenfranchising eligible, registered Texas
voters ... High school students over 18 will not be able to vote
with their school IDs. College students legally registered in
Texas will not be able to vote with out-of-state driver's
licenses." 235
Representatives offered evidence of disenfranchisement
while no proponents of the bill defended of its potential to reduce
voter fraud or increase confidence in the electoral system.
Representative Richard Raymond stated that there were four
million "poor people in the State of Texas .
.
. nearly three-
fourths, of which are minority. And that's why I believe this is
aimed at minorities." 236 In response to questions regarding the
bill's effects on minorities, Representative Harless asserted the
bill applied to "all Texans," yet did not have any evidence of the
impact on racial minorities from the bill's passage. 237 In the
course of the debates, Representative Harless did respond to the
question "[i]s it your intention for this bill to disenfranchise
ethnic minority voters?" The lack of recognition of the potential
Amendment No. 55 stated, "Following a general election for state and county
officers, the secretary of state shall determine whether . .. a majority of the persons who
were required to cast a provisional vote under Section 63.011 because the voter lacked
the photo identification required by Section 63.001(b), were members of a racial or ethnic
minority protected by Section 5 of the federal Voting Rights Act. (b) If the secretary of
state makes the determination under Subsection (a) that a majority of voters who lacked
photo identification were members of a racial or ethnic minority, in all subsequent
elections held in the state, a voter may be accepted for voting . .. by providing the voter's
voter registration certificate to an election officer at the polling place." Rep. Harless
voted to table the amendment. Id.
23 Id.
234
236
Texas House Journal, 2011 Reg. Sess. No. 40.
27
Id.
THE UNIVERSITY OF CHICAGO LEGAL FORUM
632
impact of the bill on minority groups led Representative Lon
Burnam to designate the legislative session as "shaping up to be
the most overtly racist session that I have witnessed in 25 or
30 years." 2 3 8
In North Carolina, the same issue exposed by the legislative
debates was the lack of fraud to support the law's passage.
Asserting a relevant state interest in enacting the law without
evidence of the need for it required particular dexterity. The
Speaker of North Carolina's House at the time H.R. 589 was
enacted stated fraud was not the primary reason in
instituting it.239
V.
CONCLUSION
Congress enacted the Twenty-Sixth Amendment as a tool to
empower youth in choosing representatives leading them into
war and as recognition of their emerging role as citizens in
society. It crafted the Amendment to assure the right would
extend to state elections, free from wholesale deprivation and
abridgement. The legislative record discussed the need to
diminish youth voting barriers, while the text of the Amendment
included the power to protect voting rights from abridgement of
varying forms. Though the courts have applied the Twenty-Sixth
Amendment sparingly to protect these larger rights, the
Amendment's scope offers a viable tool to challenge voter ID
laws. The impact of some state voter ID laws on voting rights is
so stark and dramatic that it is unexplainable on non-age-based
discrimination grounds and has resulted in a dramatic and
disproportionate effect on youth, and in particular minority
youth. The characteristics of such a claim also enable plaintiffs
and courts to utilize a unique application of the Arlington
Heights standard of constitutional analysis to assess the validity
of these instances of state action.
238
id.
"Well, we call this [H.B. 589] 'restoring confidence in elections.' There is some
voter fraud, but that's not the primary reason for doing this. There's [sic] a lot of people
who are just concerned with the potential risk of fraud, and in our state it could be
significant. This is just a measure that we think makes three-fourths, nearly threefourths of the population more comfortable and more confident when they go to the
polls." See MSNBC: Voter ID restores confidence in elections (MSNBC television
broadcast Mar. 16, 2013, 3:49PM), available at http://www.wral.com/news/state/
necapitol/video/12231808/.
239